2013 update Wills and Estate Planning- Seminar

2013 update Wills and Estate Planning- Seminar                             

Wednesday January 16, 2013  12:15-1:00 PM

Law Office of Kenneth Vercammen, 2053 Woodbridge Ave, Edison, NJ 08817

        Invited:  Clients, Friends, Accountants, Business Owners, HR staff, Financial Planners, Insurance Agents, Nursing Home Staff, Hospital and Nursing Home Social Workers, Office on Aging Personnel, Senior Club Presidents, and Medicaid Workers,

COST: Free if you pre-register. Complimentary Sandwiches and materials provided at 12:00 sharp. We previously held this seminar for the Metuchen and Edison Adult schools. This program is limited to 15 people. Please bring a canned food donation, which will be given to the St. James Food Bank located on Woodbridge Avenue in Edison, NJ. Please email us if you plan on attending or if you would like us to email the materials.

SPEAKER: Kenneth Vercammen, Esq.

                  (Author- Answers to Questions About Probate)

The new NJ Probate Law made a number of substantial changes in Probate and the administration of estates and trusts in New Jersey.

Main Topics:

1. The New Probate Law and preparation of Wills                   

2. 2012 changes in Federal Estate and Gift Tax exemption

3. NJ Inheritance tax $675,000

4. Power of Attorney                          

5.  Living Will                                            

6.  Administering the Estate/ Probate/Surrogate                    

7.  Question and Answer                     

        COMPLIMENTARY MATERIAL: Brochures on Wills, "Answers to Questions about Probate" and Administration of an Estate, Power of Attorney,  Living Wills, Real Estate Sales for Seniors, and Trusts.

        Co-Sponsor: Middlesex County Estate Planning Council

To attend or for Information: Mike McDonald 732-572-0500

or email VercammenLaw@Njlaws.com

http://www.facebook.com/events/313920508723046/

Can’t attend?  We can email you materials

Send email to VercammenLaw@Njlaws.com

http://www.youtube.com/watch?v=OXVSiS5ca8I&feature=g-upl

REMOVING AN EXECUTOR FROM AN ESTATE

http://www.youtube.com/watch?v=VmYnU1Dt9ZQ&feature=g-upl

DUTIES OF EXECUTOR

Probate Fee Schedule

Probate Fee Schedule 

PROBATE OF WILLS AND COPIES

• PROBATE: $100.00
• Probate of a will of not more than two pages.
• Each additional page - $5.00
• Probate of each codicil, not exceeding one page, $25.00.
• Where codicil requires an additional witness, $5.00.
• To reopen probate proceedings for qualification of executor or taking proof of extra witness, $25.00.
• One witness in the above probate proceedings, no charge.
• Each additional witness, $5.00.
• Recording and comparing, microfilming or photostating, each additional page of will or codicil, $5.00.
• Filing, entering, issuing and recording, microfilming or photostating, proceedings in
  commission for deposition of foreign witness to a will or codicil, $35.00. Plain extra
  copy of will, $3.00 for each page.
• Certified copy of will with proofs for New Jersey county, not exceeding two pages including will and codicil, $50.00. For pages in excess of two, $5.00 for each page.
• Wills filed but not probated (as, where there are no asset), $10.00 for first two pages, $5.00 for each additional page, $5.00 for cover letter stating no assets, $5.00 for
  death certificate.
• Exemplifying will for another state, not exceeding two pages including will and codicil, plus cost of certificate of Secretary of State when requisite, $75.00 (not including $9.00 fee for exemplified forms). For pages in excess of two, $5.00 for
  each page.
• Recording, microfilming or photostating, docketing, indexing, filing and reporting to the Division of Taxation in the Department of the Treasury an exemplified copy of will and probate proceedings from another state, $5.00 for each page.
• Recording, microfilming or photostating, docketing, indexing and filing a certified copy of will with proofs from New Jersey, $5.00 for each page.
• Recording, microfilming or photostating certified transcripts of wills admitted to probate and probate proceedings or letters of administration and administration proceedings granted by the Superior Court, $5.00 for each page.

LETTERS OF TRUSTEESHIP

• Acceptance of trustee and letters of trusteeship, including one certificate, $50.00.

LETTERS OF ADMINISTRATIONGeneral administration, including preparation and execution of complaint, bond, surety affidavits, necessary recording, microfilming or photostating, indexing, filing, report to the Division of Taxation, including power of attorney and death certificate, in the Department of the Treasury and the Clerk of the Superior Court and original letters including authorization to accept service of process and death certificate, $125.00, and for other documents, $5.00 per page.

• Administration ad prosequendum $50.00, and for other documents, $5.00 per page.
• Exemplifying administration, $75.00.
• Certified copy of administration, $50.00.

Affidavits of surviving spouse or next of kin where the value of the real and personal assets of the estate does not exceed $20,000.00 or $10,000.00, respectively, (when less than $100.00, $5.00) for each $100.00 or part thereof, (in excess of $100.00). Total cost shall not exceed $50.00. This fee is waived where the value of the assets of the estate does not exceed $200.00.

LETTERS OF GUARDIANSHIP

• Granting letters of guardianship, acceptance of guardianship and filing of power of attorney, $50.00.
• Affidavits of estates of minors where value of real and personal estate does not exceed $5,000.00, $5.00 per page.
• Miscellaneous petitions and orders, $5.00 per page.

INVENTORIES

• For all services in appointment of appraisers, $25.00.
• Filing, entering and recording, microfilming or photostating, inventory and appraisement, not exceeding one page, and affidavits of appraisers and executor, $25.00.
• For each additional page, $5.00.

ACCOUNTINGFor filing complaint and one page of accounting, $175.00.
For auditing, stating, reporting and recording, microfilming or photostating, accounts of executors, administrators, guardians, trustees and assignees, including drawing judgment, but exclusive of advertising costs:

• In estates up to and including $2,000.00, no additional fee.
• In estates from $2,001.00 to and including $10,000.00, $100.00.
• In estates from $10,001.00 to and including $30,000.00, $125.00.
• In estates from $30,001.00 to and including $65,000.00, $150.00.
• In estates from $65,001.00 to and including $200,000.00, 3/10 of 1% but not less than
  $300.00.
• In estates exceeding $200,000.00, 4/10 of 1%, but not less than $400.00.
• For each page of accounting in excess of one, $5.00.
• In computing the amount of an estate for the purpose of fixing the fees of a surrogate for auditing and reporting the account, the balance from the prior account shall be excluded.
• No fees herein shall be charged against the recipient of any pension, bounty or allowance, for services of the surrogate and the Probate Part of the Chancery Division of the Superior Court in respect thereof, pursuant to N.J.S.3B:13-14.

MISCELLANEOUS PROCEEDINGS

• Proceedings relative to presumption of death, filing, entering and recording, microfilming or photostating (exclusive of letters), with additional fee for advertising, $175.00.
• Sale of land to pay debts (exclusive of advertising), $175.00.
• Sale of land in fulfillment of contract made by decedent, $175.00.
• Sale of lands within one year, $175.00.
• Sale of minor's land, $175.00.
• Distribution, filing and entering complaint, recording, microfilming or photostating, and filing judgment, $175.00.
• Filing of first paper in action in the Superior Court, Chancery Division, Probate Part, $175.00.
• Filing of answering pleadings or other answering papers in Superior Court, Chancery Division, Probate Part (First paper filed by anyone other than Plaintiff), $110.00.
• Adoption of adults, filing and entering proceedings (all papers) including one judgment, $175.00.
• Adoption of minors (with one hearing), filing and entering proceedings (all papers) including one judgment, $175.00.
• Adoption of minors with two or more hearings, filing and entering proceedings (all papers) including one judgment, $75.00.
• Application and order to limit time to creditors, $60.00, but exclusive of advertising costs. * includes the following fees.
• Application for relief subsequent to final judgment in the Superior Court, Chancery Division, Probate Part, $25.00.

Notice to Creditors: NO LONGER PROCESSED BY SURROGATE'S OFFICE.
Please contact the newspaper of your choice directly for filing.

• Proceedings for the appointment of a conservator, with or without jury trail, $175.00.
• Proceeding for the determination of incapacity and for the appointment of a guardian for an alleged incapacitated person, with or without jury trial, $200.00.
• Proceedings in connection with payment into court of a proceeds of a judgment in favor of a minor, in lieu of bond, pursuant to N.J.S.3B:15-16 ( in addition to fees payable under Letters of Guardianship), the following fees are payable upon withdrawal of funds on deposit:
• For each withdrawal including petitions and orders provided and prepared by the surrogate for withdrawal of funds for court approval:
• Up to and including $500.00, $20.00.
• From $501.00 to and including $1,000.00, $25.00.
• From $1,001.00 to and including $5,000.00, $30.00.
• From $5,001.00 to and including $10,000.00, $35.00.
• From $10,001.00 to and including $25,000.00, $40.00.
• From $25,001,00 to and including $50,000.00, $60.00.
• In excess of $50,000.00, $100.00.

MISCELLANEOUS CHARGES

• Short certificates $5.00.
• Validating short certificate with one year of issue date, $3.00.
• Subpoenas, each, $25.00.
• Marking true copies, subpoenas, each $3.00.
• Marking true copies, orders to show cause, each, $3.00.
• Marking true copies of other papers, each $3.00.
• Authorization of process, $5.00.
• Swearing each witness, $2.00.
• Adjournment or continuance, $15.00.
• Miscellaneous orders of court, first page, $5.00.
• For each additional page, $5.00.
• Recording, microfilming or photostating all papers not herein provided for, $5.00
  for each page.
• For making copies not otherwise provided, $3.00 for each page.
• Filing transcript of death certificate, $5.00.
• Power of attorney, per page $5.00 plus $5.00 for certified mail.
• Search fee, per estate $10.00.
• Proceedings relative to appointment of a guardian ad litem, $25.00.
• Renunciation by one person, filing, entering and recording, or photostating, $5.00.
  Each additional person, $3.00.
• Caveat, filing or withdrawing, $25.00.
• Combined refunding bond and release of not more than two pages, filing, entering, microfilming and recording, or photostating, $10.00. For more than two pages, $5.00 for each additional page. Additional charge for county clerk's certificate, $5.00.
• Release of not more than two pages of refunding bond and release, $10.00. For more than two pages, $5.00 for each additional page. Additional charge for county clerk's certificate, $5.00.
• Assignments of legacy or interest, $10.00 per page, plus $5.00 where county clerk's certificate is necessary.
• Filing all papers not herein provided for $5.00, if microfilming process is used, $5.00 per page.
• Plain copy of two-page wills, $10.00
• Each additional page, $5.00.
• Filing of motions in the Superior Court, Chancery Division, Probate Part, $15.00.
• Notice of appeal (trial court), $10.00.
• Minimum charge for all other papers or services in proceedings in the Superior Court, Chancery Division, Probate Part, $5.00.
• 3B:14-48 Service of Process by Surrogate, $25.00.
• Duplicating or copying of microfiche, digital tape, high density disks, optically scanned and recorded materials or for any other media used to record or preserve records, $150.00 per medium recorded.
• Processing fee for returned check, $20.00 plus bank fee.

source http://www.co.middlesex.nj.us/surrogate/fees.asp

Who has the right to be appointed when an individual dies without a Will?

Who has the right to be appointed when an individual dies without a Will?
The next of kin of the decedent have the right to be appointed.  This is determined by statute. The surviving spouse or domestic partner has the first right. Children of the decedent are next. However, any heir may be appointed assuming they obtain the appropriate renunciations from any other heir who has an equal or prior right to be appointed. 

What do I bring if the decedent dies without a will?You must still go through the probate process. You will be required to bring:

• A certified death certificate;
• Renunciations, if applicable, from parties not willing to serve as administrator. Please see our Forms Section for blank Renunciations.
• A list of the decedent’s assets and an approximate value of each.
• You must provide the Make, Model and Vin number for any car in the decedent’s name alone
• You must provide Bank Account information i.e. Bank name, Account number and most recent statement.

•  How do I get a Tax ID number? 
  http://www.irs.gov; 800-829-1040. Form SS-4 - Application for Employer Identification Number (EIN)

  
  
  

  What is a Surety Bond and why do I need to get one?
  A surety bond is an insurance policy that protects the beneficiaries and creditors of the estate. Administrators are required by law to obtain a surety bond in order to be appointed. Executors may not be required to obtain a surety bond if the will waives that requirement.15) When does the reading of the Will take place?
  In New Jersey the will is not read aloud in a formal manner. It is examined by the Surrogate Court when presented by the executor.

  16) Do I need an attorney?How do I get a Bond released?
  The administrator can be released from the surety bond in two ways:

  
  
  
  • Filing the original refunding bond and release forms from all beneficiaries with the Surrogate Court and stamped copies with the Insurance Company
  • With the approval of the Superior Court of a formal accounting of the estate

  
  

  27) What is the fee for filing an Order to Show Cause and Verified Complaint?
  Please refer to the Fee Schedule

  28) Do I have to locate the witnesses to the will?
  If the will is “self-proved” – i.e., if it was witnessed by two individuals and notarize by a third individual – the witnesses do not have to appear to attest to their signatures.  If the will is not “self-proved” then one of the witnesses will have to attest to his/her signature.

  29) Is the executor or administrator entitled to a fee?
  Yes.  The fee is a percentage of the probate estate and is established by statute.

  Source : http://www.co.middlesex.nj.us/surrogate/faq.asp 

Probate Frequently Asked Questions

Probate Frequently Asked Questions

1) How do I begin the probate procedure? The person that wishes to be appointed to represent the Estate will bring a certified copy of the death certificate and the original Will. While the Middlesex County Surrogate can begin the paperwork anytime after death, probate cannot be completed until the day following the tenth day after death. No appointment is necessary for our New Brunswick office. You can make an appointment at one of our nine satellite offices by calling (732) 745-3055.

2) Is the probate process expensive?
No. Most court costs in probate cost less than $200.00 if there is a Will

3) Who has the right to be appointed when an individual dies without a Will?
The next of kin of the decedent have the right to be appointed.  This is determined by statute. The surviving spouse or domestic partner has the first right. Children of the decedent are next. However, any heir may be appointed assuming they obtain the appropriate renunciations from any other heir who has an equal or prior right to be appointed.

4) What do I bring to Middlesex County Surrogate Court?
If you are probating a will, you have to bring:

• A certified copy of a death certificate;
• An original will. If an original will cannot be located, the will, to be admitted to probate, must be formally admitted through proceedings in Middlesex County Superior Court.

5) What do I bring if the decedent dies without a will?You must still go through the probate process. You will be required to bring:

• A certified death certificate;
• Renunciations, if applicable, from parties not willing to serve as administrator. Please see our Forms Section for blank Renunciations.
• A list of the decedent’s assets and an approximate value of each.
  • You must provide the Make, Model and Vin number for any car in the decedent’s name alone
  • You must provide Bank Account information i.e. Bank name, Account number and most recent statement.

6) What forms of payment does the Middlesex County Surrogate Court accept?We accept Visa, MasterCard, Discover, Checks and Money Orders. WeDO NOT accept cash or Power of Attorney checks from the deceased.

7) What does "Probate" mean?
“Probate” refers to the act of presenting a will to the Surrogate Court for filing.  In a more general sense, probate refers to the method by which your estate is administered and processed through the legal system after you die.

8) What time are you at the satellite office?
Please refer to the Satellite Office Section.

9) How long will this take?
It generally takes between fifteen and thirty minutes to complete the probate process.

10) What happens if I can’t find the Original Will?
If the original will cannot be found, the next of kin to the deceased would come to the Surrogate Court to make application for Administration.

11) How do I get a Tax ID number? 
http://www.irs.gov; 800-829-1040. Form SS-4 - Application for Employer Identification Number (EIN)

12) Why does the Surrogate Court keep the original Will and what happens if I need it again?
New Jersey law requires that the original will be filed with the Surrogate Court in the county the decedent resided in at the time of his/her death. A copy of the will is provided to the executor at the time of probate.

13) What kind of ID do I need?
No ID is required.

14) What is a Surety Bond and why do I need to get one?
A surety bond is an insurance policy that protects the beneficiaries and creditors of the estate. Administrators are required by law to obtain a surety bond in order to be appointed. Executors may not be required to obtain a surety bond if the will waives that requirement.

15) When does the reading of the Will take place?
In New Jersey the will is not read aloud in a formal manner. It is examined by the Surrogate Court when presented by the executor.

16) Do I need an attorney?
An attorney is not required to appear in the Surrogate Court with the applicant.

17) Can you recommend an attorney?
Middlesex County Bar Association http://www.mcbalaw.com/; (732) 828-3433

18) I already paid my attorney; why do I have to pay you too?
Attorney fees are separate from Surrogate fees.

19) Why do I have to probate the Will just for a car?
The Motor Vehicle Commission requires a Surrogate certificate to transfer a car out of the decedent's name.

20) Do I have to transfer the car into my name before I can sell it?
No.

21) The Executor/Administrator of the Estate is taking too long to distribute my money; how do I get them to pay me my share?
A legatee/beneficiary of an estate has the right to petition the Superior Court to compel the Executor/Administrator to make distribution. However, the Executor/Administrator should be allowed a reasonable time to settle the estate. This would include the payment of taxes, debts, etc.

22) How can I get a copy of a Will? 
A copy of a probated will can be obtained in person, through the mail or ordered over the phone. The fee for a copy is $3.00/page.

23) How do I get Guardianship of a Minor?
A person would apply in the Surrogate Court for the Guardianship of a Minor.

24) How do I reverse the Guardianship of a Minor?
By Superior Court Order.

25) How do I get a Bond released?
The administrator can be released from the surety bond in two ways:

• Filing the original refunding bond and release forms from all beneficiaries with the Surrogate Court and stamped copies with the Insurance Company
• With the approval of the Superior Court of a formal accounting of the estate

26) What is the fee for filing a Refunding Bond and Release?
Please refer to the Fee Schedule

27) What is the fee for filing an Order to Show Cause and Verified Complaint?
Please refer to the Fee Schedule

28) Do I have to locate the witnesses to the will?
If the will is “self-proved” – i.e., if it was witnessed by two individuals and notarize by a third individual – the witnesses do not have to appear to attest to their signatures.  If the will is not “self-proved” then one of the witnesses will have to attest to his/her signature.

29) Is the executor or administrator entitled to a fee?
Yes.  The fee is a percentage of the probate estate and is established by statute.

30) How do I contest a will?
File a complaint with the Superior Court through the Middlesex County Surrogate's Court.

31) If a will contains any charitable bequests, how does the executor notify the Attorney General of NJ?
The executor must file an affidavit with the Attorney General that a Notice of Probate was served to all interested parties by personal service, or regular and certified mail. The affidavit should be sent to: Attorney General of the State of New Jersey, Division of Law, P.O. Box 112, Trenton, NJ 08625.

Useful Telephone Numbers:

• NJ Inheritance Tax Office: 609-292-5033
• NJ Motor Vehicle Information: 609-292-6500
• Social Security Administration: 800-772-1213
• US Tax Information: 800-829-1040
• Department of Veterans Affairs: 800-827-1000

source and for more information http://www.co.middlesex.nj.us/surrogate/faq.asp

LAW OFFICE VOLUNTEER WINTER BREAK INTERNSHIPS IN EDISON, N.J.

  LAW OFFICE VOLUNTEER WINTER BREAK INTERNSHIPS IN EDISON, N.J. 

         The Law Office of Kenneth Vercammen established a special Winter break legal internship program for college students and Law Students. Volunteer students will have the opportunity to work in a busy law office and work with real clients. Students interested in a career in law can obtain knowledge and experience in law office procedures, preparing legal correspondence, and assisting clients. For the Winter/ Christmas program selected interns must work 30 hours per week for 3 weeks minimum.

         Interested students must mail or fax a cover letter indicating the internship they are applying for and resume. If no personal cover letter by student, the resume will not be considered. Emails not accepted. After sending the resume and cover letter, call the office.

Details on internships at http://www.njlaws.com/intern.htm

LAW OFFICE   WINTER/ CHRISTMAS BREAK- VOLUNTEER INTERNSHIPS

        EDISON, N.J. 

          Volunteer students will have the opportunity to work in a busy law office and work with real clients. Students interested in a career in law can obtain knowledge and experience in law office procedures, preparing legal correspondence, and assisting clients.

 

1. WORK ON   LITIGATION MATTERS

     -ACCIDENT INVESTIGATION AND WITNESS CONTACTS

     - EVIDENCE REVIEW

     -CONTACT DEFENSE ATTORNEYS TO REQUEST DISCOVERY

      

2. WORK ON CRIMINAL, MUNICIPAL COURT AND PUBLIC DEFENDER CASES

     - CONTACT MUNICIPAL PROSECUTOR TO OBTAIN DISCOVERY

     -CONTACTS WITH COURT AND COUNTY PROSECUTOR'S OFFICE

     -PREPARE DISCOVERY DEMANDS    

     -EVIDENCE REVIEW AND ORGANIZATION

     -PREPARATION FOR TRIAL AND ATTEND HEARINGS

-Interview Clients facing charges in Municipal Court including Drug Possession, Drunk Driving, Assault, Driving While Suspended and other criminal and traffic offenses

-Make demands for Discovery on Prosecutor and review police reports

-Attend hearings and learn from experienced trial attorneys

-Prepare Motions to Suppress Evidence and Motions to Compel Discovery

-Conduct appropriate Legal research

-Acquire skills in Criminal Law and Procedure by active participation

-Participate in Public Relations activities and help organize seminars

- Update Lists of Prosecutors, Judges and Attorneys for publication of

    NJ Municipal Court Law Review

- Revise criminal and traffic law Articles and submit to Law Journals and criminal law websites.

3.  WILLS & PROBATE PRACTICE

     - ACT AS FORMAL WITNESS TO WILLS, POWER OF ATTORNEY AND OTHER LEGAL DOCUMENTS

     -PUBLICIZE WILL SEMINARS AND ATTEND PROGRAMS FREE OF CHARGE

4  -WORK ON COMMUNITY RELATIONS AND MARKETING including submitting articles to legal websites and search engines

           

            This is an excellent opportunity to gain valuable experience as a volunteer intern and learn New Jersey Practice and Procedure. Build your resume and obtain marketable skills.  Longer hours or weeks permitted. On Wednesday night and Friday morning, we work on Public Defender cases. Volunteer to help indigent people charged with criminal and motor vehicle offenses of magnitude. In additional to time in court, you will be given research assignments. You can work more hours if you want.  Help people less fortunate than you who are down on their luck.

          You will handle a client's file and learn details on running a successful law practice. This will not be a brief writing and photocopying clerkship. For additional information on the Law Office, please visit the website at www.njlaws.com     

         Mail or fax cover letter and resume. Do not email.

       You will help handle a client's file and learn details on running a successful law practice.  We sponsor a statewide website with information on litigation, personal injury, criminal and probate matters. It is helpful if applicants have some familiarity with HTML programming, web page design and maintenance and Internet technology. If you can update a website, please indicate so in the first paragraph of your cover letter. This office is committed to excellence and service to clients and the community. Applicants must have attention to detail. Included in activities is to help translate webpages and add to web logs.

         Students interested in a career in law obtain experience in law office procedures, preparing legal correspondence, and assisting clients.   

          

                                                        Very truly yours,

                                                  KENNETH VERCAMMEN, Managing Attorney

         Mail or fax cover letter and resume. Do not email.

Kenneth Vercammen & Associates, PC

2053 Woodbridge Avenue, Edison, NJ 08817

PHONE 732-572-0500           (Fax)  732-572-0030

[near Rt 287 and the NJ Turnpike]

Guardianship in NJ requires affidavits of two physicians

Guardianship in NJ requires affidavits of two physicians

RULE 4:86. Action For Guardianship Of A Mentally Incapacitated Person Or For The Appointment Of A Conservator

4:86-1. Complaint

Every action for the determination of incapacity of a person and for the appointment of a guardian of that person or of the person's estate or both, other than an action with respect to a veteran under N.J.S.A. 3B:13-1 et seq., or with respect to a kinship legal guardianship under N.J.S.A. 3B:12A-1 et seq., shall be brought pursuant to Rule 4:86-1 through Rule 4:86-8 for appointment of a general, limited or pendente lite temporary guardian. The complaint shall state the name, age, domicile and address of the plaintiff, of the alleged incapacitated person and of the alleged incapacitated person's spouse, if any; the plaintiff's relationship to the alleged incapacitated person; the plaintiff's interest in the action; the names, addresses and ages of the alleged incapacitated person's children, if any, and the names and addresses of the alleged incapacitated person's parents and nearest of kin; the name and address of the person or institution having the care and custody of the alleged incapacitated person; and if the alleged incapacitated person has lived in an institution, the period or periods of time the alleged incapacitated person has lived therein, the date of the commitment or confinement, and by what authority committed or confined. The complaint also shall state the name and address of any person named as attorney-in-fact in any power of attorney executed by the alleged incapacitated person, any person named as health care representative in any health care directive executed by the alleged incapacitated person, and any person acting as trustee under a trust for the benefit of the alleged incapacitated person.

Note: Source-R.R. 4:102-1. Amended July 22, 1983 to be effective September 12, 1983; former R. 4:83-1 amended and rule redesignated June 29, 1990 to be effective September 4, 1990; R. 4:86 caption amended, and text of R. 4:86-1 amended July 12, 2002 to be effective September 3, 2002; caption to Rule 4:86 amended, and text of Rule 4:86-1 amended July 9, 2008 to be effective September 1, 2008.

4:86-2. Accompanying Affidavits

The allegations of the complaint shall be verified as prescribed by R. 1:4-7 and shall have annexed thereto:

• (a) An affidavit stating the nature, location and fair market value (1) of all real estate in which the alleged incapacitated person has or may have a present or future interest, stating the interest, describing the real estate fully or by metes and bounds, and stating the assessed valuation thereof; and (2) of all the personal estate which he or she is, will or may in all probability become entitled to, including the nature and total or annual amount of any compensation, pension, insurance, or income which may be payable to the alleged incapacitated person. If the plaintiff cannot secure such information, the complaint shall so state and give the reasons therefor, and the affidavit submitted shall in that case contain as much information as can be secured in the exercise of reasonable diligence;
• (b)Affidavits of two physicians, having qualifications set forth in N.J.S.A. 30:4-27.2t or the affidavit of one such physician and one licensed practicing psychologist as defined in N.J.S.A. 45:14B-2.  Pursuant to N.J.S.A. 3B:12-24.1(d), the affidavits may make disclosures about the alleged incapacitated person.  If an alleged incapacitated person has been committed to a public institution and is confined therein, one of the affidavits shall be that of the chief executive officer, the medical director, or the chief of service providing that person is also the physician with overall responsibility for the professional program of care and treatment in the administrative unit of the institution. However, where an alleged incapacitated person is domiciled within this State but resident elsewhere, the affidavits required by this rule may be those of persons who are residents of the state or jurisdiction of the alleged incapacitated person's residence. Each affiant shall have made a personal examination of the alleged incapacitated person not more than 30 days prior to the filing of the complaint, but said time period may be relaxed by the court on an ex parte showing of good cause. To support the complaint, each affiant shall state: (1) the date and place of the examination; (2) whether the affiant has treated or merely examined the alleged incapacitated individual; (3) whether the affiant is disqualified under R. 4:86-3; (4) the diagnosis and prognosis and factual basis therefor; (5) for purposes of ensuring that the alleged incapacitated person is the same individual who was examined, a physical description of the person examined, including but not limited to sex, age and weight; (6) the affiant's opinion of the extent to which the alleged incapacitated person is unfit and unable to govern himself or herself and to manage his or her affairs and shall set forth with particularity the circumstances and conduct of the alleged incapacitated person upon which this opinion is based, including a history of the alleged incapacitated person's condition; and (7) if applicable, the extent to which the alleged incapacitated person retains sufficient capacity to retain the right to manage specific areas, such as, residential, educational, medical, legal, vocational or financial decisions. The affidavit should also include an opinion on whether the alleged incapacitated person is capable of attending the hearing and, if not, the reasons for the individual's inability.
• (c) In lieu of the affidavits provided for in paragraph (b), an affidavit of one affiant having the qualifications as required therein, stating that he or she has endeavored to make a personal examination of the alleged incapacitated person not more than 30 days prior to the filing of the complaint but that the alleged incapacitated person or those in charge of him or her have refused or are unwilling to have the affiant make such an examination. The time period herein prescribed may be relaxed by the court on an ex parte showing of good cause.

Note: Source -- R.R. 4:102-2; former R. 4:83-2 amended and rule redesignated June 29, 1990 to be effective September 4, 1990; paragraphs (b) and (c) amended July 14, 1992 to be effective September 1, 1992; paragraph (b) amended July 13, 1994 to be effective September 1, 1994; paragraphs (a), (b), and (c) amended July 12, 2002 to be effective September 3, 2002; paragraphs (b) and (c) amended July 28, 2004 to be effective September 1, 2004; paragraphs (a), (b) and (c) amended July 9, 2008 to be effective September 1, 2008.

4:86-3. Disqualification of Affiant

No affidavit shall be submitted by a physician or psychologist who is related, either through blood or marriage, to the alleged incapacitated person or to a proprietor, director or chief executive officer of any institution (except state, county or federal institutions) for the care and treatment of the ill in which the alleged incapacitated person is living, or in which it is proposed to place him or her, or who is professionally employed by the management thereof as a resident physician or psychologist, or who is financially interested therein.

Note: Source -- R.R. 4:102-3; former R. 4:83-3 amended and rule redesignated June 29, 1990 to be effective September 4, 1990; amended July 12, 2002 to be effective September 3, 2002; caption and text amended July 28, 2004 to be effective September 1, 2004; amended July 9, 2008 to be effective September 1, 2008.

4:86-4. Order for Hearing

• (a) Contents of Order.If the court is satisfied with the sufficiency of the complaint and supporting affidavits and that further proceedings should be taken thereon, it shall enter an order fixing a date for hearing and requiring that at least 20 days' notice thereof be given to the alleged  incapacitated person, any person named as attorney-in-fact in any power of attorney executed by the alleged  incapacitated person, any person named as health care representative in any health care directive executed by the alleged  incapacitated person, and any person acting as trustee under a trust for the benefit of the alleged  incapacitated person, the alleged  incapacitated person's spouse or statutory partner, children 18 years of age or over, parents, the person having custody of the alleged  incapacitated person, the attorney appointed pursuant to R. 4:86-4(b), and such other persons as the court directs. Notice shall be effected by service of a copy of the order, complaint and supporting affidavits upon the alleged incapacitated person personally and upon each of the other persons in such manner as the court directs. The order for hearing shall expressly provide that appointed counsel for the alleged incapacitated person is authorized to seek and obtain medical and psychiatric information from all health care providers.  The court, in the order, may, for good cause, allow shorter notice or dispense with notice, but in such case the order shall recite the ground therefor, and proof shall be submitted at the hearing that the ground for such dispensation continues to exist. A separate notice shall, in addition, be personally served on the alleged  incapacitated person stating that if he or she desires to oppose the action he or she may appear either in person or by attorney and may demand a trial by jury.
• (b) Appointment and Duties of Counsel. The order shall include the appointment by the court of counsel for the alleged incapacitated person. Counsel shall (1) personally interview the alleged incapacitated person; (2) make inquiry of persons having knowledge of the alleged incapacitated person's circumstances, his or her physical and mental state and his or her property; (3) make reasonable inquiry to locate any will, powers of attorney, or health care directives previously executed by the alleged incapacitated person or to discover any interests the alleged incapacitated person may have as beneficiary of a will or trust. At least three days prior to the hearing date counsel shall file a report with the court and serve a copy thereof on plaintiff's attorney and other parties who have formally appeared in the matter. The report shall contain the information developed by counsel's inquiry; shall make recommendations concerning the court's determination on the issue of incapacity; may make recommendations concerning the suitability of less restrictive alternatives such as a conservatorship or a delineation of those areas of decision-making that the alleged  incapacitated person may be capable of exercising; and whether a case plan for the  incapacitated person should thereafter be submitted to the court. The report shall further state whether the alleged incapacitated person has expressed dispositional preferences and, if so, counsel shall argue for their inclusion in the judgment of the court. The report shall also make recommendations concerning whether good cause exists for the court to order that any power of attorney, health care directive, or revocable trust created by the alleged  incapacitated person be revoked or the authority of the person or persons acting thereunder be modified or restricted. If the alleged incapacitated person obtains other counsel, such counsel shall notify the court and appointed counsel at least five days prior to the hearing date.
• (c) Examination. If the affidavit supporting the complaint is made pursuant to R. 4:86-2(c), the court may, on motion and upon notice to all persons entitled to notice of the hearing under paragraph (a), order the alleged  incapacitated person to submit to an examination. The motion shall set forth the names and addresses of the physicians who will conduct the examination, and the order shall specify the time, place and conditions of the examination. Upon request, the report thereof shall be furnished to either the examined party or his or her attorney.
• (d) Guardian Ad Litem. At any time prior to entry of judgment, where special circumstances come to the attention of the court by formal motion or otherwise, a guardian ad litem may, in addition to counsel, be appointed to evaluate the best interests of the alleged incapacitated person and to present that evaluation to the court.
• (e) Compensation. The compensation of the attorney for the party seeking guardianship, appointed counsel, and of the guardian ad litem, if any, may be fixed by the court to be paid out of the estate of the alleged incapacitated person or in such other manner as the court shall direct.

Note: Source - R.R. 4:102-4(a)(b). Paragraph (b) amended July 16, 1979 to be effective September 10, 1979; paragraph (a) amended July 21, 1980 to be effective September 8, 1980; paragraph (a) amended July 16, 1981 to be effective September 14, 1981; caption of former R. 4:83-4 amended, caption and text of paragraph (a) amended and in part redesignated as paragraph (b) and former paragraph (b) redesignated as paragraph (c) and amended, and rule redesignated June 29, 1990 to be effective September 4, 1990; paragraph (b) amended July 13, 1994 to be effective September 1, 1994; paragraph (b) amended and paragraphs (d) and (e) added June 28, 1996 to be effective September 1, 1996; paragraphs (a), (b), (c), (d), and (e) amended July 12, 2002 to be effective September 3, 2002; paragraph (e) amended July 27, 2006 to be effective September 1, 2006; paragraphs (a), (b), (c), (d) and (e) amended July 9, 2008 to be effective September 1, 2008.

4:86-5. Proof of Service; Appearance of Mentally Incapacitated Person at Hearing; Answer

Prior to the hearing, the plaintiff shall file proof of service of the notice, order for hearing, complaint and affidavits and proof by affidavit that the alleged incapacitated person has been afforded the opportunity to appear personally or by attorney, and that he or she has been given or offered assistance to communicate with friends, relatives, or attorneys. The plaintiff or appointed counsel shall produce the alleged incapacitated person at the hearing, unless the plaintiff and the court-appointed attorney certify that the alleged incapacitated person is unable to appear because of physical or mental incapacity and the court finds that it would be prejudicial to the health of the alleged incapacitated person or unsafe for the alleged incapacitated person or others to do so. If the alleged incapacitated person or any person receiving notice of the hearing intends to appear by an attorney, such person shall, not later than five days before the hearing, serve and file an answer, affidavit, or motion in response to the complaint.

Note: Source-R.R. 4:102-5; caption and text of former R. 4:83-5 amended and rule redesignated June 29, 1990 to be effective September 4, 1990; caption and text amended July 12, 2002 to be effective September 3, 2002; caption and text amended July 9, 2008 to be effective September 1, 2008.

4:86-6. Hearing; Judgment

• (a) Trial. Unless a trial by jury is demanded by or on behalf of the alleged incapacitated person, or is ordered by the court, the court without a jury shall, after taking testimony in open court, determine the issue of incapacity. If there is no jury, the court, with the consent of counsel for the alleged incapacitated person, may take the testimony of a person who has filed an affidavit pursuant to R. 4:86-2(b) by telephone or may dispense with oral testimony and rely on the affidavits submitted. Telephone testimony shall be recorded verbatim.
• (b) Motion for New Trial. A motion for a new trial shall be served not later than 30 days after the entry of the judgment.
• (c) Appointment of General or Limited Guardian. If a guardian of the person or of the estate or of both the person and the estate is to be appointed, the court shall appoint and letters shall be granted to the incapacitated person's spouse, if the spouse was living with the incapacitated person as husband or wife at the time the incapacity arose, or to the incapacitated person's next of kin, or the Office of the Public Guardian for Elderly Adults for adults within the statutory mandate of that office, or if none of them will accept the appointment or if the court is satisfied that no appointment from among them will be in the best interests of the incapacitated person or estate, then the court shall appoint and letters shall be granted to such other person who will accept appointment as the court determines is in the best interests of the incapacitated person including registered professional guardians or surrogate decision-makers chosen by the incapacitated person before incapacity by way of a durable power of attorney, health care proxy, or advanced directive.
• (d)  Duties of Guardian.   Before letters of guardianship shall issue, the guardian shall accept the appointment in accordance with R. 4:96-1. The judgment appointing the guardian shall fix the amount of the bond, unless dispensed with by the court. The order of appointment shall require the guardian of the estate to file with the court within 90 days of appointment an inventory specifying all property and income of the incapacitated person's estate, unless the court dispenses with this requirement. Within this time period, the guardian of the estate shall also serve copies of the inventory on all next of kin and such other interested parties as the court may direct. The order shall also require the guardian to keep the Surrogate continuously advised of the whereabouts and telephone number of the guardian and of the incapacitated person, to advise the Surrogate within 30 days of the incapacitated person's death or of any major change in his or her status or health and to report on the condition of the incapacitated person and property as required by N.J.S.A. 3B:12-42.