Avenel Wills and Power of Attorney Seminar May 27, 2010 12-12:30 Golden Circle of Avenel

Avenel Wills and Power of Attorney Seminar

May 27, 2010 12-12:30
Golden Circle of Avenel
Held at St. Andrews, 244 Avenel St. Avenel, NJ 07001
Speaker: Kenneth Vercammen, Esq. of Edison
(Co-Author- NJ Elder Law & Probate)
For additional information and registration, call Dolores 732-750-2822

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, Power of Attorney, Living Wills, Inheritance taxes, making estate administration easier, revocable trusts, irrevocable trusts, 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 Wills, Probate and 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 Kenvnjlaws@verizon.net

http://www.kennethvercammen.com/Avenel-Wills.html

2B:14-13. Other Employees' Appointment; Compensation.

2B:14-13. Other Employees' Appointment; Compensation.

The Surrogate shall select and appoint the Deputy Surrogate, any special Deputy Surrogate, Executive Secretary, Chief Clerk and engage all other employees, who shall receive such compensation as shall be recommended by the Surrogate and approved by the county governing body.

L.1999,c.70,s.1.

2B:14-10. Deputy Surrogate; Special Deputy Surrogate.

2B:14-10. Deputy Surrogate; Special Deputy Surrogate.

a.A Surrogate may appoint a Deputy Surrogate who shall serve at the pleasure of the Surrogate.

b.During the Surrogate's absence or disability or in the event of a vacancy in the office of Surrogate, the Deputy Surrogate shall exercise all powers and duties of the Surrogate's office.

c.A county may require that the Deputy Surrogate enter into a faithful performance bond and may set the amount and terms of the bond.

d.A Surrogate may appoint an employee to be Special Deputy Surrogate. The Special Deputy Surrogate shall serve at the pleasure of the Surrogate and, during absence or disability of the Surrogate and Deputy Surrogate or when there is both a vacancy in the Office of the Surrogate and no Deputy Surrogate, the Special Deputy Surrogate shall exercise all the powers and duties of the Surrogate.

L.1999,c.70,s.1.

2B:14-11. Special probate clerk
2B:14-11. Special Probate Clerk. A Surrogate may designate one or more employees to serve as Special Probate Clerk. A special probate clerk shall serve at the pleasure of the Surrogate and may exercise the same powers as the Surrogate in taking depositions of witnesses to wills, qualifications of executors and administrators, acceptance of trusteeships and guardianships, and oaths and affirmances.

L.1999,c.70,s.1.

2B:14-12. Executive secretary; chief clerk
2B:14-12. Executive Secretary; Chief Clerk.

A Surrogate may, in his discretion, appoint an Executive Secretary and a Chief Clerk, both of whom shall serve at the pleasure of the surrogate.

L.1999,c.70,s.1.

2B:14-7. Acknowledgment, proof

2B:14-7. Acknowledgment, proof. Receipts and releases shall be acknowledged or proved prior to recording. The acknowledgment or proof shall be recorded with the receipt or discharge by the Surrogate of:

a.The county which is issuing the relevant letters;

b.The county where the seller of real estate resides; or

c.The county where the trust-related property is located.

L.1999,c.70,s.1.

2B:14-8. Recording
2B:14-8. Recording. The Surrogate shall determine the means of recording instruments and the county shall furnish equipment and supplies for recording.

L.1999,c.70,s.1.

2B:14-9. Filing
2B:14-9. Filing. On the first Monday in January, April, July and October, annually, the Surrogate shall file with the Clerk of the Superior Court indexes of all wills proved before the Surrogate or the Superior Court and a report of all letters of administration granted in the previous three months.

L.1999,c.70,s.1.

2B:14-4. Disqualification; referral to Assignment Judge

2B:14-4. Disqualification; referral to Assignment Judge.

a.Neither the Surrogate nor any employee of the Surrogate's office may perform duties respecting a matter if the Surrogate is a fiduciary or has an interest in a matter.

b.When the Surrogate and employees are disqualified from performing their duties, the matter shall be referred to the Assignment Judge of the county for appropriate disposition.

L.1999,c.70,s.1.

2B:14-5. Filling vacancy in surrogate's office
2B:14-5. Filling vacancy in Surrogate's office. If a Surrogate does not take office within 30 days after the end of the preceding term or a vacancy occurs in the office of Surrogate, the Governor, with advice and consent of the Senate, shall fill the vacancy from the political party of the person last elected to the office. The person appointed shall serve until election and qualification of a successor. Election of a successor for a five-year term shall occur at the next general election unless the vacancy occurs within 37 days before the election, in which case it shall occur at the second succeeding general election.

L.1999,c.70,s.1.

2B:14-6. Recorded documents
2B:14-6. Recorded documents. The Surrogate shall record:

a.Orders and judgments of the Superior Court, Chancery Division, Probate Part;

b.Fiduciary bonds required by law;

c.Accounts of fiduciaries, disclaimers, revocations, renunciations and requests;

d.Wills proved before the Surrogate or the Superior Court, together with proofs;

e.Letters testamentary, of administration, of guardianship or of trusteeship issued by the Surrogate and relevant documents;

f.Receipts and releases given to fiduciaries; and

g.Other documents which the Surrogate is required by law to record.

L.1999,c.70,s.1.

2B:14-1. Election of surrogates

2B:14-1. Election of Surrogates. A Surrogate shall be elected to serve in each county for a five-year term commencing January 1 after election. The Surrogate shall be both the Judge and Clerk of the Surrogate's Court.

L.1999,c.70,s.1.

2B:14-2. Bond of surrogates
2B:14-2. Bond of Surrogates. A county may require the Surrogate to enter into a faithful performance bond and may set the amount and terms of the bond. The bond, after approval by a judge of the Superior Court, shall be filed with the Secretary of State; a copy shall be filed with the clerk of the county governing body.

L.1999,c.70,s.1.

2B:14-3 Salaries of surrogates.

2B:14-3. Salaries of Surrogates. The board of chosen freeholders in each county shall fix the Surrogate's annual salary by resolution in an amount equal to not less than sixty-five percent (65%) of the annual salary of a Judge of the Superior Court which shall not be diminished during the term of office or during any consecutive terms served by the Surrogate. Nothing in this section shall be construed to require that a surrogate whose annual salary exceeds the amount provided for herein shall be reduced, or that a board of chosen freeholders may not increase the salary of a surrogate in excess of the amount provided for herein.

L.1999, c.70, s.1; amended 2001, c.370, s.1.

2B:14-4. Disqualification; referral to assignment judge

3B:10-18. When appointment unnecessary

3B:10-18. When appointment unnecessary
The appointment of a substituted administrator shall not be required if the unadministered assets of the intestate or testator consist of money on deposit in a bank, trust company or savings and loan association not exceeding $1,000.00, in which event it shall be lawful for the Superior Court, in an action brought by any party in interest, to authorize the bank, trust company or savings and loan association to distribute to the persons entitled by law to receive the assets. Payments made pursuant to the authority of this section shall release the bank, trust company or savings and loan association from any claim of, or liability to, any person interested in the estate.

3B:10-17. Manner in which appointment shall be made

3B:10-17. Manner in which appointment shall be made
The appointment shall be made by the issuance of letters of substitutionary administration, with or without the will annexed as the case may be, by the surrogate's court or the Superior Court in the manner and upon the conditions prescribed for granting letters of administration to the first administrators in other cases.

3B:10-16. Decedent's will to be observed

3B:10-16. Decedent's will to be observed
Where administration is granted with the will annexed, the will of the decedent therein expressed shall be observed and performed.

3B:10-15. Appointment of substituted administrators

3B:10-15. Appointment of substituted administrators
When a sole or sole surviving or remaining executor or administrator, with or without the will annexed, dies or is removed or discharged by the court after qualifying and entering upon the duties of his office but before the completion thereof, the vacancy so created shall, except as hereinafter provided, be filled by the appointment of a fit person to exercise the vacated office. The person so appointed shall be nominated substituted administrator with the will annexed or substituted administrator, as the case may be.

3B:10-14. Appointment of debtor as executor; debt not discharged

3B:10-14. Appointment of debtor as executor; debt not discharged
The appointment of a debtor as executor shall not, unless otherwise expressed in the will, be construed to discharge the executor from payment of the debt, but the debt shall be considered an asset in the hands of the executor and shall be accounted for in the same manner as any other part of the decedent's estate.

3B:10-13. Duty to apply in this State for original letters of administration

3B:10-13. Duty to apply in this State for original letters of administration
When an intestate is resident in any county of New Jersey at his death, it shall be the duty of the heir or any other person desiring original letters of administration upon his estate to make application therefor to the surrogate of that county or to the Superior Court of this State.

Any person having knowledge of the grant in a foreign jurisdiction of original letters of administration upon the estate of a person dying resident in any county of New Jersey, shall give information thereof to the Superior Court.

The court may direct the clerk of the court to issue and have served subpenas or an order to show cause requiring the appearance before it, at a specified time, of any persons having any interest in the estate, and commanding them to abide the order of the court. The matter of the grant of letters of administration shall be wholly within the jurisdiction of the court.

3B:10-12. Temporary administration

3B:10-12. Temporary administration
The Superior Court may grant administration ad litem, temporary administration, administration pendente lite, or any form of limited administration.

3B:10-11. Administration ad prosequendum on death by wrongful act

3B:10-11. Administration ad prosequendum on death by wrongful act
The surrogate's court of the county wherein an intestate resided at his death, or, if the intestate resided outside the State, the surrogate's court of the county wherein the accident resulting in death occurred, or the Superior Court, may grant letters of administration ad prosequendum to the person entitled by law to general administration. An administrator ad prosequendum shall not be required to give bond.

3B:10-10. Executor de son tort

3B:10-10. Executor de son tort
Whereas it is sometimes practiced to the defrauding of creditors, that persons who are entitled to the administration of the estate of an intestate will not accept administration, but suffer or procure the administration to be granted to others of indigent circumstances, from whom they, or others, by their means, by deeds of gifts, or by letters of attorney, obtain the estate of the intestate into their hands, and are not subject to the payment of the debts of the intestate, and so the creditors cannot have or recover their just debts and demands; therefore, if any person shall obtain, receive and have, any property or debts of an intestate, or a release or other discharge of any debt or duty due the intestate, upon any fraud as herein provided, without valuable consideration as shall amount to the value of the property or debts, or near thereabouts except it be in or towards satisfaction of some just debt, of the value of the same property or debts, to him owing by the intestate at the time of his decease, the person shall be charged and chargeable as executor of his own wrong so far only, as all the property and debts coming to his hands, or whereof he is released or discharged by the administrator, will satisfy. However he shall not be charged for those just debts, contracted without fraud and upon a good consideration, which are owing to him by the intestate at the time of his decease, nor for payments made by him which lawful executors or administrators ought to pay.

3B:10-9. Record of appointment of personal representative; evidentiary effect

3B:10-9. Record of appointment of personal representative; evidentiary effect
If any person shall desire to have the appointment of a personal representative appointed in another state recorded in this State for the purpose of manifesting the authority of the personal representative to release or discharge real estate in this State from any mortgage, judgment, other lien or encumbrance which was held by his decedent the surrogate of the county wherein the real estate is situate, or the clerk of the Superior Court, may, upon the presentation to him of an exemplified copy of the record of the appointment of the personal representative, record and file the exemplified copy in his office, and the record or certified copies thereof shall be received as evidence in all courts of this State.

3B:10-8. Administration by creditor of nonresident decedent

3B:10-8. Administration by creditor of nonresident decedent
If a personal representative of a nonresident decedent fails to apply in this State for letters testamentary or of administration within 60 days next after the death of the decedent and there is real or personal property of the decedent within this State, or the evidence thereof in the hands of a resident of this State, the surrogate's court of a county wherein the real property, or personal property or evidence, is situate, or the Superior Court, may, in an action by any person resident or nonresident, alleging himself to have a debt or legal claim against the decedent which by the law of this State survives against his representatives, issue letters of administration, with the will annexed or otherwise as the case may require, to some fit person to be designated by the court.

Prior to an appointment pursuant to this section, notice shall be given the foreign personal representative as the court shall prescribe.

3B:10-7. Ancillary administration on estate of nonresident intestate

3B:10-7. Ancillary administration on estate of nonresident intestate
Where a nonresident dies intestate seized of real property or possessed of personal property in this State, or where the evidence of his personal property shall be in the hands of any resident of this State, the surrogate's court of the county wherein any of the real or personal property or evidence thereof, is situate, or the Superior Court, shall, in an action upon satisfactory proof of intestacy, issue letters of administration upon the estate of the nonresident to the administrator of his estate or, on notice to the administrator as the court shall require, to any person who would be entitled to administration if the intestate had been a resident at his death.

3B:10-6. Acts of administrator before notice of will

3B:10-6. Acts of administrator before notice of will
Lawful acts performed in good faith by an administrator before notice of a will and purchases or transfers made by him in good faith before notice shall remain valid and shall not be impeached or altered by an executor upon probate of the will.

Nothing in this section shall be construed to relieve the administrator of any liability to the executor under the will for property unadministered or maladministered.

3B:10-5. Discharge of corporations or persons making payments or delivering assets under N.J.S. 3B:10-3 or N.J.S. 3B:10-4

3B:10-5. Discharge of corporations or persons making payments or delivering assets under N.J.S. 3B:10-3 or N.J.S. 3B:10-4
Any bank, building and loan association, association, as defined in section 5 of the "Savings and Loan Act (1963)," P.L.1963, c. 144 (C. 17:12B-5), or any other corporation or any person, association or society, which pays or delivers any assets of the intestate to the person executing an affidavit under N.J.S. 3B:10-3 or N.J.S. 3B:10-4, upon presentation of a copy of the affidavit marked a true copy by the surrogate or the clerk of the Superior Court, shall be forever discharged from all claims by any administrator of the intestate who may be appointed or by any other person, as to the assets so paid or delivered, and this, notwithstanding that the total value of the real and personal assets does in fact exceed the amount limited by N.J.S. 3B:10-3 or N.J.S. 3B:10-4 or that the statements in the affidavit are erroneous or that the consent required by N.J.S. 3B:10-4 has not been obtained.

3B:10-4 When heirs entitled to assets without administration.

3B:10-4. When heirs entitled to assets without administration.

Where the total value of the real and personal assets of the estate of an intestate will not exceed $10,000.00 and the intestate leaves no surviving spouse or domestic partner, and one of his heirs shall have obtained the consent in writing of the remaining heirs, if any, and shall have executed before the Surrogate of the county where the intestate resided at his death, or, if then nonresident in this State, where any of the intestate's assets are located, or before the Superior Court, the affidavit herein provided for, shall be entitled to receive the assets of the intestate of the benefit of all the heirs and creditors without administration or entering into a bond. Upon executing the affidavit, and upon filing it and the consent, he shall have all the rights, powers and duties of an administrator duly appointed for the estate and may be sued and required to account as if he had been appointed administrator by the Surrogate or the Superior Court.

The affidavit shall set forth the residence of the intestate at his death, the names, residences and relationships of all of the heirs and specifically the nature, location and value of the real and personal assets and also a statement that the value of the intestate's real and personal assets will not exceed $10,000.00.

The consent and the affidavit shall be filed and recorded, in the office of the Surrogate or, if the proceeding is before the Superior Court, then in the office of the clerk of that court. Where the affiant is domiciled outside this State, the Surrogate may authorize in writing that the affidavit be executed in the affiant's domicile before any of the officers authorized by R.S.46:14-7 and R.S.46:14-8 to take acknowledgments or proofs.

3B:10-3 When spouse or domestic partner entitled to assets without administration.

3B:10-3. When spouse or domestic partner entitled to assets without administration.

Where the total value of the real and personal assets of the estate of an intestate will not exceed $20,000.00, the surviving spouse or domestic partner upon the execution of an affidavit before the Surrogate of the county where the intestate resided at his death, or, if then nonresident in this State, where any of the assets are located, or before the Superior Court, shall be entitled absolutely to all the real and personal assets without administration, and the assets of the estate up to $5,000.00 shall be free from all debts of the intestate. Upon the execution and filing of the affidavit as provided in this section, the surviving spouse or domestic partner shall have all of the rights, powers and duties of an administrator duly appointed for the estate. The surviving spouse or domestic partner may be sued and required to account as if he had been appointed administrator by the Surrogate or the Superior Court. The affidavit shall state that the affiant is the surviving spouse or domestic partner of the intestate and that the value of the intestate's real and personal assets will not exceed $20,000.00, and shall set forth the residence of the intestate at his death, and specifically the nature, location and value of the intestate's real and personal assets. The affidavit shall be filed and recorded in the office of such Surrogate or, if the proceeding is before the Superior Court, then in the office of the clerk of that court. Where the affiant is domiciled outside this State, the Surrogate may authorize in writing that the affidavit be executed in the affiant's domicile before any of the officers authorized by R.S.46:14-7 and R.S.46:14-8 to take acknowledgments or proofs.

3B:10-2 To whom letters of administration granted.

3B:10-2. To whom letters of administration granted.

If any person dies intestate, administration of the intestate's estate shall be granted to the surviving spouse or domestic partner of the intestate, if he or she will accept the administration, and, if not, or if there be no surviving spouse or domestic partner, then to the remaining heirs of the intestate, or some of them, if they or any of them will accept the administration, and, if none of them will accept the administration, then to any other person as will accept the administration.

If the intestate leaves no heirs justly entitled to the administration of his estate, or if his heirs shall not claim the administration within 40 days after the death of the intestate, the Superior Court or surrogate's court may grant letters of administration to any fit person applying therefor.

3B:10-1. Grant of letters of administration

3B:10-1. Grant of letters of administration
The surrogate's court of the county in which a decedent resided at the time of his death, or the Superior Court, may grant letters of general administration on the estate of the decedent.

3B:9-14 Federal law.

3B:9-14 Federal law.

79.The provisions of this chapter, as amended and supplemented by P.L.2004, c.132 (C.3B:3-33.1 et al.) are not intended to enlarge, limit, modify or otherwise affect the federal requirements for a qualified disclaimer under 26 U.S.C. section 2518 or 26 U.S.C. section 2046.

3B:9-13 Extension of time to disclaim interest existing on February 28, 1980.

3B:9-13. Extension of time to disclaim interest existing on February 28, 1980.

a.An interest in property existing on February 28, 1980, as to which, if a present interest, the time for filing a disclaimer under this chapter has not expired, or if a future interest, the interest has not become indefeasibly vested or the taker finally ascertained, may be disclaimed within 9 months after February 28, 1980.

b.An interest in property existing on the effective date of this chapter as amended and supplemented by P.L.2004, c.132 (C.3B:3-33.1 et al.) as to which the right to disclaim has not been barred by prior law may be disclaimed at any time before the right to disclaim is barred by N.J.S.3B:9-9.

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

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

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

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

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

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

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

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

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

3B:9-8 Effect of disclaimer.

3B:9-8 Effect of disclaimer.

3B:9-8 Effect of disclaimer. A disclaimer acts as a nonacceptance of the disclaimed interest, rather than as a transfer of the disclaimed interest. The disclaimant is treated as never having received the disclaimed interest. Unless a governing instrument otherwise provides, the property or interest disclaimed devolves:

a.As to a present interest:

(1)in the case of an intestacy, a will, a testamentary trust or a power of appointment exercised by a will or testamentary trust, as if the disclaimant had predeceased the decedent or, if the disclaimant is designated to take under a power of appointment exercised by a will or testamentary instrument, as if the disclaimant had predeceased the donee of the power. If by law or under the will or testamentary trust the descendants of the disclaimant would take the disclaimant's share by representation were the disclaimant to predecease the decedent, then the disclaimed interest devolves by representation to the descendants of the disclaimant who survive the decedent; and

(2)in the case of a nontestamentary instrument or contract, other than a joint property interest, as if the disclaimant had died before the effective date of the instrument or contract. If by law or under the nontestamentary instrument or contract the descendants of the disclaimant would take the disclaimant's share by representation were the disclaimant to predecease the effective date of the instrument, then the disclaimed interest devolves by representation to the descendants of the disclaimant who survive the effective date of the instrument.

(3)in the case of joint property created by a will, testamentary trust or non-testamentary instrument: (a) if the disclaimant is the only living owner, the disclaimed interest devolves to the estate of the last to die of the other joint owners; or (b) if the disclaimant is not the only living owner, the disclaimed interest devolves equally to the living joint owners, or all to the other living owner, if there is only one living owner.

b.As to a future interest:

(1)In the case of a will or testamentary trust or a power of appointment exercised by a will or testamentary trust, as if the disclaimant had died before the event determining that the taker of the property or interest is finally ascertained and his interest is vested; and

(2)In the case of a nontestamentary instrument or contract, as if the disclaimant had died before the event determining that the taker of the property or interest had become finally ascertained and the taker's interest is vested; and

(3)Notwithstanding the foregoing, a future interest that is held by the disclaimant who also holds the present interest and which takes effect at a time certain, such as a fixed calendar date or the disclaimant's attainment of a certain age, is not accelerated by the disclaimer and continues to take effect at the time certain.

c.Except as provided in subsection b. of this section, a disclaimer relates back for all purposes to the date of death of the decedent or the donee of the power or the effective date of the nontestamentary instrument or contract.


Amended 2004, c.132, s.71; 2005, c.160, s.10.

3B:9-9 Bar of right to disclaim.

3B:9-9. Bar of right to disclaim.

a.The right of an individual to disclaim property or any interest therein is barred by:

(1)an assignment, conveyance, encumbrance, pledge or transfer of the property or interest or a contract therefor; or

(2)a written waiver of the right to disclaim; or

(3)an acceptance of the property or interest or a benefit under it after actual knowledge that a property right has been conferred; or

(4)a sale of the property or interest that was seized under judicial process before the disclaimer is made; or

(5)the expiration of the permitted applicable perpetuities period; or

(6)a fraud on the individual's creditors as set forth in the "Uniform Fraudulent Transfer Act" (R.S.25:2-20 et seq.).

b.The disclaimant shall not be barred from disclaiming all or any part of the balance of the property where the disclaimant has received a portion of the property and there still remains an interest which the disclaimant is yet to receive.

c.A bar to the right to disclaim a present interest in joint property does not bar the right to disclaim a future interest in that property.

d.The right to disclaim may be barred to the extent provided by other applicable statutory law.

3B:9-7 Recording of disclaimer where real property or interest therein is disclaimed.

3B:9-7 Recording of disclaimer where real property or interest therein is disclaimed.

3B:9-7. Each county clerk or register of deeds and mortgages shall provide a book to be entitled "Disclaimers," so arranged that he may record therein:

a.The name of the disclaimant;

b.The name of the decedent or the name of the donee of the power of appointment, the name of the trustee or other person having legal title to, or possession of, the property or interest disclaimed or entitled thereto in the event of disclaimer or the name of the donee of the power of appointment;

c.The location of the property;

d.The file number of the county clerk's office or the office of register of deeds and mortgages indorsed upon each disclaimer filed;

e.The date of filing the disclaimer.

The county clerk or the register of deeds and mortgages shall maintain in the record an alphabetical index of the names of all disclaimants stated in any disclaimer file, and also keep in his office for public inspection, all disclaimers so filed therein.

3B:9-6 Delivering and filing disclaimer.

3B:9-6 Delivering and filing disclaimer.

3B:9-6. a. The disclaimer of an interest by an intestate heir, or a person who is a devisee or beneficiary under a will or a testamentary trust or who is an appointee under a power of appointment exercised by a will or testamentary trust, including a person succeeding to a disclaimed interest, shall be filed in the office of the surrogate or clerk of the Superior Court in which proceedings have been commenced or will be commenced for the administration of the estate of the decedent or deceased donee of the power of appointment. A copy of the disclaimer shall also be delivered to any personal representative, or other fiduciary of the decedent or to the donee of the power or to the holder of the legal title to which the interest relates. The fiduciary shall promptly notify the person or persons who take the disclaimed interest, although any such failure to provide the notice required herein shall not affect the validity of the disclaimer.

b.The disclaimer of an interest in property, other than property passing under or pursuant to a will or testamentary trust shall be delivered to the fiduciary, payor or other person having legal title to or possession of the property or interest disclaimed or who is entitled thereto in the event of disclaimer. Any fiduciary, payor or other person having title to or possession of the property or interest who receives such disclaimer shall promptly notify the person or persons who take the disclaimed interest, although any such failure to provide the notice required herein shall not affect the validity of the disclaimer.

c.In the case of a disclaimer by a fiduciary of a power or discretion:

(1)If such disclaimer is made after court authorization, the fiduciary shall deliver a copy to such person or persons and in such manner as shall be directed by the court; or

(2)If such disclaimer is made without court authorization pursuant to N.J.S.3B:9-4(a), the fiduciary shall deliver a copy to all co-fiduciaries, but if there are none, then to all persons whose property interests are affected by the disclaimer.

d.In the case of a will or testamentary trust or power of appointment under a will or testamentary trust, if real property or any interest therein is disclaimed, the surrogate or clerk of the Superior Court, as the case may be, shall forthwith forward a copy of the disclaimer for filing in the office of the clerk or register of deeds and mortgages of the county in which the real property is situated. In the case of a nontestamentary instrument or contract, if real property or any interest therein is disclaimed, the original thereof shall be filed in the office of the clerk or register of deeds and mortgages of the county in which the real property is situated.

e.For the purposes of this section, delivery may be effected: (1) in person; (2) by registered or certified mail; or (3) by another means which is reasonably likely to accomplish delivery.

3B:9-4.2 Time for disclaiming.

3B:9-4.2 Time for disclaiming.

68.Time for disclaiming. a. The disclaimer of an interest in property may be delivered, and if required by this chapter filed, at any time after the effective date of the governing instrument, or in the case of an intestacy, at any time after the death of the intestate decedent, and must be delivered, and if required by this chapter filed, before the right to disclaim is barred by N.J.S.3B:9-9. With respect to joint property, the barring of the right to disclaim the present interest does not bar the right to disclaim the future interest.

b.The disclaimer of a power or discretion by a fiduciary, including an agent acting on behalf of a principal within the implied or general authority of a power of attorney, in a fiduciary capacity may be made at any time, before or after exercise.

3B:9-4.1 Disclaimer by a fiduciary of a power of discretion.

3B:9-4.1 Disclaimer by a fiduciary of a power of discretion.

67. a. Any fiduciary, including an agent acting on behalf of a principal within the implied or general authority of a power of attorney, may disclaim any power or discretion held by such fiduciary in a fiduciary capacity. Unless the governing instrument specifically authorizes the fiduciary to disclaim such power or discretion without obtaining court authorization to do so, the disclaimer by the fiduciary shall not be effective unless, prior thereto, such fiduciary has been authorized to disclaim by the court having jurisdiction over the fiduciary after finding that it is advisable and will not materially prejudice the rights of: (1) devisees, heirs, or beneficiaries of the decedent; (2) the minor, the incapacitated individual, the conservatee, or the principal; or (3) the beneficiaries of the trust.

b.Unless expressly authorized by the court or by the governing instrument:

(1)Any disclaimer under this section shall be personal to the fiduciary so disclaiming and shall not constitute a disclaimer by a co-fiduciary or a successor or substituted fiduciary of such power or discretion;

(2)No disclaimer shall affect the rights of: (a) devisees, heirs or beneficiaries of the decedent; (b) the minor, the incapacitated individual, the conservatee, or the principal; or (c) the beneficiaries of the trust.