Confidential Power of Attorney Questionnaire

Please fill out completely and fax or mail back. This form is extremely important. Your accuracy and completeness in responding will help me best represent you. All sections and information must be filled out prior to sitting down with the attorney.

Please be sure to check all appropriate boxes. If "NONE", please state "NONE".

If "NOT APPLICABLE", please state "N/A".

PLEASE PRINT CLEARLY

1. Your Full Name:

_______________________________________________________________

First Last

2. IF MARRIED OR SEPARATED, complete (a) and (b) below:

(a) Spouses Full Name:

______________________________________________________

First Last

3. Your Street Address: ____________________________________

City ____________________ State ____ Zip Code ______________

4. Telephone Numbers:

Cell: _______________________________ ________________________

Day: ____________________/Night: ________________________

5. E-mail address: _______________________________________

6. Referred By: ___________________________________________

If referred by a person, is this a client or attorney? If you heard about the law office on the internet, which search engine? What search terms did you use?

7. Todays Date ____________________

We recommend a Durable Power of Attorney in the event of your physical

or mental disability to help you with financial affairs?

Yes ________ No ________

We recommend a Living Will telling hospitals and doctors not to prolong your life by artificial means, i.e. Terri Schiavo; Karen Quinlan?

Yes ________ No ________


How can we help you? What are your questions/other important information?

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

[It is required by Court Rules that all pages be filled out in persons own handwriting prior to seeing the attorney to avoid conflicts of interest]

8. Your Sex: [ ] Male [ ] Female

9. Your Marital Status: [ ] Single [ ] Married [ ] Separated [ ] Divorced [ ] Widowed

10. Your Date of Birth: ___________________ SS # __________________

Month Day Year

11. Spouse Date of Birth: _________________ SS # __________________

Month Day Year

2. Personal representative

The person charged with administering bills, paying taxes and/or other debts, preserving, managing, and distributing assets and property is called the Personal Representative. This person should be one in whom you have trust and confidence. Your SPOUSE is usually named as primary Personal Representative r, followed by the child who lives closest to your home.

Please provide the following information about the person you wish to name to serve in this capacity.

1. PRIMARY Choice of Personal Representative:

Name: _________________________ ______________________________

First Last

Relationship: _______________ Address: ________________________

2. SECOND Choice of Personal Representative:

This individual will serve in the event that the primary executor/personal representative is not alive at the time of your death, or is unable to serve.

Name: _________________________ ______________________________

First Last

Relationship: _______________ Address: _____________________________

The two proposed of Personal Representative s must be filled out prior to meeting the attorney. We do not recommend Joint of Personal Representative s, which often cause conflicts and additional work for the Estate. It is best to select one primary person, then a secondary person.

Complaint to Admit Photocopy of Will

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

In New Jersey, the court and surrogate do not supervise how an executor or administrator handles the estate. Unfortunately, occasionally the Executor simply fails to timely carry out their duties. When there is only a copy of the Executor will have their attorney File a Complaint in Superior Court.

COMPLAINT TO ADMIT COPY OF WILL

A Complaint to admit copy of will is filed with the Superior Court Probate Part. A signed certification of the Executor and beneficiaries is needed. In addition, an Order to Show Cause is prepared by your attorney. The Order to Show Cause is to be signed by the Judge directing the executor, through their attorney notify potential beneficiary, plus to appear before the court at a specific date and time. Competent elder law/probate attorney may charge an hourly rate of $270-$380 per hour, with a retainer of $3000 needed. Attorneys will require the retainer to be paid in full up front.

COURT RULE 4:84. THE FOLLOWING ARE COMPLAINTS IN CASES IN WHICH SURROGATES COURT NOT ABLE TO ACT 4:84-1. In General

In any case in which, under R. 4:82, the Surrogates Court may not act, any person in interest may file a complaint and apply for an order directed to all other interested parties to show cause why the relief sought should not be granted. Service shall be as provided by R. 4:67-3.

4:84-2. Probate in the Superior Court

If a will is sought to be proved in the Superior Court, proceedings for discovery shall be available pursuant to R. 4:10, R. 4:12 to 4:19 inclusive, R. 4:21 and R. 4:23. On the taking of a deposition, a photocopy of the will shall be marked for identification by the person before whom the deposition is taken. If the will is admitted to probate, the judgment of the Superior Court shall direct that the will be filed with and recorded by the Surrogates Court. Letters of appointment shall then be issued by the Surrogates Court.

Compelling the Sale of Jointly Owned Houses, the Partition Suit

As times change, often people buying houses are not the traditional husband and wife couple. Mortgage companies are now usually willing to grant mortgage to boyfriend-girlfriend relationships or gay couples. However, if there is a breakup of relationships, a divorce complaint cannot be filed to compel the sale or division of assets. Instead, a partition suit can be filed in the Superior Court-Chancery Division - General Equity.

The partition suit originated from the English common law. Centuries ago, most property simply were farms. If co-owners could not voluntarily agree on a buy-out, or sole ownership, the Chancellor (an English Judge) could simply order the property/farms divided, or partitioned down the middle. In modern days, houses, condos and most land cannot be divided down the middle. Therefore, in a partition suit, the Superior Court Judge is usually asked to order the house sold and net proceeds divided.

A partition suit is usually started by having your attorney file a verified complaint for partition, signed by both you and the attorney. In addition, an Order to Show Cause is filed. This is a proposed order to be signed by the judge, compelling the defendant / the property owner to appear with their attorney and answer why the court should not award the relief requested with the original complaint. The defendant is also provided with time to file an answer plus counter-claim.

When there are issues other than an equal division of real property, the property owner, through their attorney, may conduct discovery. The three main methods of discovery under the New Jersey court rules are:

1) Interrogatories

2) Request for documents and

3) Deposition-which is live questioning under oath in front of a court reporter.

In partition suits, financial records may have to be produced to the court indicating who paid for household improvements, mortgage payments, taxes, utilities, etc. It is important to keep accurate records. If you dont have records, you will have to recreate records. Partition suits are often similar to divorce cases in which the parties have deep emotional feelings. However, often the bottom line is money. How much will be left after mortgage, taxes and any lien are satisfied is really the main issue.

Partition actions in New Jersey are governed by NJSA 2A:56-1:

2A:56-1. "Cotenant" ; executor or administrator with will annexed; definition and construction

As used in this chapter:

"Court" means the superior court.

"Cotenant" means and includes a tenant in common, joint tenant or coparcener, but not a tenant by the entirety.

An executor or administrator with the will annexed, having, by the terms of the testators will, power to sell any real estate or any undivided interest in any real estate of which his testator died seized, shall have the same power to bring an action to effect a partition of such real estate as such testator might have brought if living, and cotenant as used in this chapter shall include such an executor or administrator so far as may be requisite for such purposes.

2A:56-2. Partition through sale

The superior court may, in an action for the partition of real estate, direct the sale thereof if it appears that a partition thereof cannot be made without great prejudice to the owners, or persons interested therein.

2A:56-3. Division of part of real estate and sale of residue

In any action for partition in the superior court, part of the real estate included in the application may be divided and the remainder sold when it appears by the report of the commissioner or commissioners, which shall designate the lands to be divided and those to be sold, and by other satisfactory evidence that the whole of the real estate cannot be divided among the owners and proprietors without great prejudice to their interest.

Court Rule 4:63-1. permits courts to order the Sale of a property.

Rule 4:63-1- Partition; Dower; Curtesy

If in an action for partition or for the admeasurement of dower or curtesy, the court shall be satisfied that a division of the real estate can be made without great prejudice to the owners thereof, it may appoint one or more persons as commissioners to ascertain and report in writing the metes and bounds of each share; if not so satisfied, it may direct a sale or, in its discretion, if the action is one for dower or curtesy, an assignment from the rents and profits.

Zudiak v Szuryk 93 NJ Eq. 559, 561 (Chan 1922) established the power of the Court to order the sale of land if actual partition cannot be made.

Many counties in New Jersey have set up mediation panels to attempt to help parties resolve issues and avoid trials. The mediators are licensed attorneys volunteering their time to help the superior court. Most cases settle without an expensive lengthy trial. Hopefully, parties can put their emotional feelings aside, cut their court costs and settle without a trial.

Communication Is the Key

Many people prefer to keep their legal documents private. With end of life issues, however, communicating your wishes is essential. An advance health care directive is the first step in this process. But, you also need to discuss your preferences with others. Take the time to discuss these issues with the person you appoint as your health care proxy. Talk to your physician. Make sure your family knows how you feel about end of life issues. The more these individuals know, the easier it will be for them to fulfill your wishes.

Common Questions

How do I title accounts? Each bank or investment firm may have its own format, but generally you may use, for a trust, "Alice Carroll, Trustee, Lewis Carroll Trust dated January 19, 1998," or, in a shorthand version, "Alice Carroll, Trustee under agreement dated January 19, 1998." For an estate, "Alice Carroll, Executor, Estate of Lewis Carroll, Deceased."

How do I sign my name in a fiduciary capacity? An executor signs: "Alice Carroll, Executor (or Personal Representative) of the Estate of Lewis Carroll, Deceased". A trustee signs: "Alice Carroll, Trustee".

Where do I hold the estate or trust assets? If you engage a trust company, they will open an account in the name of the estate or trust and provide regular statements showing all income and disbursements. You can open an investment account with a bank or brokerage company in the name of the estate or trust. All expenses and disbursements must be made from these accounts, and you should receive regular statements.

How (and how much) do I get paid? Fiduciary work is time-consuming and can be difficult; it is appropriate to seek payment for your services. The will or trust agreement may set forth the compensation. If they do not, many states provide either a fixed schedule to which you must adhere, or allow "reasonable" compensation, which usually takes into account the size of the estate, the complexity involved, and the time spent by the fiduciary. Executors or trustees fees are taxable compensation to you. As stated above, several states do not permit the fiduciary to pay his or her own compensation without a court order; check with your attorney before you write yourself a check.

What if a beneficiary complains? Even professional fiduciaries, such as trust companies, receive complaints from time to time. The best way to deal with them is to do your best to avoid them in the first place by following these guidelines and consulting with an attorney experienced in estate administration. Many complaints arise because beneficiaries are not kept up to date on the administration of the trust or estate. Frequent communication with beneficiaries is a must. Whenever possible, consult with an attorney who specializes in trust and estate matters when a complaint involves more than routine issues.

Can I be sued or be held personally liable? Your errors or mismanagement of a trust and estate can indeed subject you to personal liability. Common pitfalls include not paying tax or filing returns on time, improper investment choices (whether too conservative, too speculative, or favoring one beneficiary over another), self-dealing (buying assets for yourself or your family from the estate or trust, whether or not at market price), or allowing property or casualty insurance to lapse, resulting in a loss to the account. Your best protection is to get good professional advice and to fully document your actions and decisions.

How am I discharged as fiduciary at the end of the administration? What if I want to resign? Whether you stop acting because the estate or trust has terminated, or you wish to resign before the conclusion of your administration, you must be discharged, either by the local court or by the beneficiaries. In some states, this is a formal process, involving the preparation of an accounting. In others, a relatively simple document signed by the beneficiaries can be used. If you are resigning prior to the conclusion of your administration, check the document to see who succeeds you as fiduciary. If no successor is named, you may need a court proceeding to appoint a successor before you can be discharged.

Coercion as Defense to Will or Power of Attorney

One of the major cases dealing with undue influence was Haynes v. First National State Bank of New Jersey, 87 N.J. 163, 75-76 (1981). Here the Supreme Court held that the burden of proof establishing undue influence shifts to the proponent when a will benefits a person who stood in a confidential relationship to the decedent and there are suspicious circumstances which need explanation. The suspicious circumstances need only be slight. Id. at 176. Moreover, when the evidence is almost entirely in the possession of one party and the evidence points to the proponent as asserting undue influence, a clear and convincing standard may be applied rather than the normal burden of proof of preponderance of the evidence. Id. at 183.

Furthermore, the Haynes analysis was extended to situations in which there is a transfer of property where the beneficiary of the property and an attorney is on one side and the donor on the other. See Oachs v. Stanton, 280 N.J. Super. 478, 483 (App. Div. 1995).

The court in Oachs determined that under circumstances such as these the donee bears the burden of proof to establish the validity of the gift, even in situations in which the donee did not dominate the decedent¹s will. Id. at 485. This rule was established to protect a donor from making a decision induced by a confidential relationship the donee possesses with the donor. Id. Again, the burden is a clear and convincing standard. Id.

The Supreme Court in Pascale v. Pascale, 113 N.J. 20, 31 (1998), stated that when a donor makes a gift to a donee that he/she is dependent upon, a presumption arises that the donor did not understand the consequences of his/her act. In these situations the donee must demonstrate that the donor had disinterested and competent counsel. Id. Likewise, undue influence is conclusive, when a mentally or physically weakened donor makes a gift without advice or a means of support, to a donee upon whom he/she depends. Id.

A confidential relationship can be found to exist when one is certain that the parties dealt on unequal terms. In re Stroming¹s Will, 12 N.J. Super. 217, 224 (1951). The appropriate inquiry is if a confidential relationship existed, did the parties deal on terms and conditions of equality? Blake v. Brennan, 1 N.J. Super. 446, 453 (1948). Suspicious circumstances are not required to create a presumption of undue influence with regard to inter vivos gifts and the presumption of undue influence is more easily raised in an inter vivos transfer. See Pascale, supra, 113 N.J. at 31; Bronson v. Bronson, 218 N.J. Super. 389, 394 (App. Div. 1987).

Generally, an adult is presumed to be competent to make an inter vivos gift. See Conners v. Murphy, 100 N.J. Eq. 280, 282 (E. & A. 1926); Pascale v. Pascale, 113 N.J. 20, 29 (1988). However, when a party alleges undue influence with regard to an inter vivos gift, the contesting party must prove undue influence existed or that a presumption of undue influence should arise. Pascale, supra, 113 N.J. at 30. A presumption of undue influence arises when a confidential relationship exists between the donor and donee or where the contestant proves the donee dominated the Will of the donor. Id.; see also Seylaz v. Bennett, 5 N.J. 168, 172 (1950); In re Dodge, 50 N.J. 192, 227 (1967); Mott v. Mott, 49 N.J. Eq. 192, 198 (Ch. 1891); Oachs v. Stanton, 280 N.J. Super. 478 (App. Div. 1995) (holding that where a confidential relationship existed and that the donor did not rely upon the donee, a shifting of the burden was still appropriate); In re Neuman¹s Estate, 133 N.J. Eq. 532, 534-35 (E. & A. 1943) (stating in a will context ³Such burden does not shift merely because of the existence of a confidential relationship, without more, as in the matter of gifts inter vivos.²) The In re Dodge court explained why a presumption of undue influence arises in a confidential relationship and stated: ³In the application of this rule it is not necessary that the donee occupy such a dominant position toward the donor as to create an inference that the donor was unable to assert his will in opposition to that of the donee.² In Re Dodge, 50 N.J. 192 (1967). The court referenced a much earlier case in explaining the rule¹s application: "Its purpose is not so much to afford protection to the donor against the consequences of undue influence exercised over him by the donee, as it is to afford him protection against the consequences voluntary action on his part induced by the existence of the relationship between them, the effect of which upon his own interests he may only partially understand or appreciate." In re Dodge, supra, 50 N.J. at 228 citing Slack v. Rees, 66 N.J. Eq. 447, 449 (E. & A. 1904). In sum, once it is proven that a confidential relationship exists the burden shifts to the donee to show by clear and convincing evidence that no undue influence was used. Although the case law indicates suspicious circumstances need not be shown the donee must show all was fair, open and voluntary, no deception was practiced and that the transaction was well understood. Pascale, supra, 113 N.J. at 31; see also In re Dodge, supra, 50 N.J. at 227; Seylaz, supra, 5 N.J. at 173. Furthermore, confidential relationships arise in all types of relationships ³whether legal, natural or conventional in their origin, in which confidence is naturally inspired, or, in fact, reasonably exists.² In re Fulper¹s Estate, 99 N.J. Eq. 292, 314 (Prerog. Ct. 1926); see Pascale, supra, 113 N.J. at 34. It appears confidential relationships exist in all cases in which: "The relations between the [contracting] parties appear to be of such a character as to render it certain that they do not deal on terms of equality, but that either on the one side from superior knowledge of the matter derived from a fiduciary relation, or from over-mastering influence; or on the other from weakness, dependence or trust justifiably reposed, unfair advantage is rendered probable." Pascale, supra, 113 N.J. at 34, quoting In re Fulper, supra, 99 N.J. Eq. at 314; see also In re Dodge, supra, 50 N.J. at 228.

In determining whether the Defendant was the dominant person in the relationship there is no clear cut rule and instead the court must look to the particular circumstances of the matter. In re Fulper, supra, 99 N.J. Eq. at 315; Giacobbi v. Anselmi, 18 N.J. Super. 600, 616 (Ch. Div. 1952). In Fulper the court determined that a confidential relationship existed in a father-son relationship in which the father was advanced in age, weak and physically depended upon the son. Moreover, since the father sought the son¹s assistance on business matters, lived with the son during the winter months and gave the son joint and several power over his checking account an actual repose of trust and confidence in the son was demonstrated. In re Fulper, supra, 99 N.J. Eq. at 318.

In the Giacobbi case, supra, a confidential relationship was determined to exist between a mother and daughter, even though the mother did not suffer from mental or physical infirmity. There the mother was found to be alert, active, and somewhat independent. However, she turned to the daughter for small issues and problems when they occurred. Giacobbi, supra, 18 N.J. Super. at 617.

Therefore, the burden can shift to Defendant to prove by clear and convincing evidence the transaction was not unduly influenced. Furthermore, where a donor makes an ³improvident² gift to the donee upon whom she depends that strips the donor of all or virtually all their assets, as here, a presumption arises that the donor did not understand the consequences of their act. Pascale, supra, 113 N.J. at 31, citing Vanderbach v. Vollinger, 1 N.J. 481, 489 (1949). Under those circumstances the donee must establish that the donor had the advice of competent and disinterested counsel. Id. citing Vanderback, supra, 1 N.J .at 488-89. Similarly, when a mentally or physically weakened donor makes a gift to a donee whom the donor is dependent upon, without advice, and the gift leaves the donee without adequate means of support, a conclusive presumption of undue influence arises. Id. citing Seylaz, supra, 5 N.J. at 173. However, when a donor is not dependent upon the donee ³independent advice is not a prerequisite to the validity of an improvident gift even though the relationship between the parties is one of trust and confidence.² Id. citing Seylaz, supra, 5 N.J. at 173.

Although suspicious circumstances are not required to be established in an inter vivos transfer for a presumption of undue influence to exist, thereby shifting the burden of proof, Plaintiff has raised the issue. Pascale, supra, 113 N.J. at 30.

Closing the Estate

Estates close when the executor has paid all debts, expenses, and taxes; received tax clearances from the IRS and the state; and all assets on hand have been distributed. Trusts terminate when a date or event described in the document occurs, such as the death of a beneficiary or the date the beneficiary attains a stated age. Some states require a petition to be filed in court before the assets are distributed and an estate or trust can be closed. When such a formal proceeding is not required, it is nevertheless good practice to require all beneficiaries to sign a document, prepared by an attorney, in which they approve of your actions as fiduciary and acknowledge receipt of assets due them. This protects the fiduciary from later claims by a beneficiary. A final income tax return must be filed and a reserve kept back for any tax that may be due.

Client Estate Planning Checklist

This list is designed to assist you or your heirs in locating important documents and information needed to settle your estate. You should review this document regularly and update as needed.

1. Will

a. Date signed: _____________________________________________________

b. Where located: __________________________________________________

c. Name of executor: ________________________________________________

2. Trust

a. Date signed: _____________________________________________________

b. Where located: __________________________________________________

c. Name of trustee: _________________________________________________

3. Durable power of attorney for finances

a. Date signed: _____________________________________________________

b. Where located: __________________________________________________

c. Name of attorney-in-fact: __________________________________________

4. Living will

a. Date signed: _____________________________________________________

b. Where located: __________________________________________________

5. Health care power of attorney

a. Date signed: _____________________________________________________

b. Where located: __________________________________________________

c. Name of attorney-in-fact: __________________________________________

6. Health insurance

a. Name of carrier: _________________________________________________

b. Carrier’s address/phone number: ___________________________________

c. Policy number: __________________________________________________

7. Disability insurance

a. Name of carrier: _________________________________________________

b. Carrier’s address/phone number: ___________________________________

c. Policy number: ___________________________________________________

8. Long term care insurance

a. Name of carrier: _________________________________________________

b. Carrier’s address/phone number: ___________________________________

c. Policy number: ___________________________________________________

9. Life insurance

a. Name of carrier: _________________________________________________

b. Carrier’s address/phone number: ___________________________________

c. Policy number: ___________________________________________________

d. Named beneficiary: ______________________________________________

10. Retirement/employee benefits

a. Company name, address, and phone number: _______________________

b. Named beneficiary: _____________________________________________

11. Letter of instructions (funeral and burial; insurance papers; location of will and trust; location of safe deposit box; names/addresses/phone numbers of lawyer, accountant, broker, and clergy member; instructions for distribution of tangible personal property; expression of wishes for family/friends; business instruction)

12. Personal financial information including credit cards, loans, checking and savings accounts, brokerage accounts, stocks, bonds and U.S. savings bonds, mutual funds, outstanding loans both owing and owed

13. List of doctors

14. Statement of wishes concerning personal matters

15. Current and complete references to all personal property currently owned

16. Location of business buy/sell agreements, partnership papers, corporate filings, and other business-related paperwork

17. Irrevocable insurance trust

18. Specification of all property, individual, joint, community, and mixed

19. Any gift tax returns filed? When/Where/Type of gift

20. Deeds to all real property

Caveat to Will

If you have evidence a Will was not prepared properly, the signer was incompetent, there was undue influence, you may be able to prevent the filing of the Will in probate if you file a Caveat toWill.

A. Caveat

Is a formal notice by someone to prevent the proving of a Will or the grant of administration of an Estate. The following is one of the NJ Court Rules dealing with a Caveat to Will

RULE 4:82. MATTERS IN WHICH THE SURROGATE'S COURT MAY NOT ACT

Unless specifically authorized by order or judgment of the Superior Court, and then only in accordance with such order or judgment, the Surrogate's Court shall not act in any matter in which

(1) a caveat has been filed with it before the entry of its judgment;

(2) a doubt arises on the face of a will or a will has been lost or destroyed;

(3) the application is to admit to probate a writing intended as a will as defined by N.J.S.A. 3B:3-2(b) or N.J.S.A. 3B:3-3;

(4) the application is to appoint an administrator pendente lite or other limited administrator;

(5) a dispute arises before the Surrogate's Court as to any matter; or

(6) the Surrogate certifies the case to be of doubt or difficulty.

Catholic Lawyers Guild - Wills and Power of Attorney Seminars for Senior Groups

President Bush signed a law changing Federal Estate Taxes. New Jersey has revised the law dealing with the Power of Attorney. The AARP and Middlesex County Estate Planning Council has encouraged Churches and groups providing services to Senior Citizens to schedule day time programs to help seniors and professionals providing services to retirees to protect themselves and learn about new laws that affect their legal rights. Churches and senior groups in Middlesex County can schedule a free daytime Wills or Power of Attorney seminars for the benefit of seniors and individuals who help seniors. The benefits of making gifts to churches and charitable groups will also be discussed.
We can provide a free quality educational/consumer programs to educate and entertain Seniors. Kenneth A. Vercammen has served as a speaker for 10 Senior citizen and adult school programs on Wills and Estate Administration in Edison, Metuchen, Woodbridge and throughout Middlesex County. We invite you to schedule a Wills seminar for Fall 2004 or Winter 2005
1. WILLS & ESTATE ADMINISTRATION- PROTECT YOUR FAMILY AND MAKE PLANNING EASY
2. NEW PRIVACY LAW REQUIRES POWER OF ATTORNEY OR WRITTEN CONSENT FOR DOCTORS TO DISCUSS MEDICAL ISSUES WITH SPOUSE OR FAMILY.
Website njwillsprobatelaw.com provides Legal Information on New Jersey Laws. If your members need information on NJ legal topics, please visit our the New Jersey Laws website. It has recently expanded to provide extensive information on Wills and Probate. There are 50 articles available on the njwillsprobatelaw.com website including: Wills & Estate Planning Probate / Estate Administration Power of Attorney Guardianship of Disabled Adults Living Wills Executor - Duties Codicil to a Will Removing an Executor of an Estate
As an added service questions asked by attendees will be entertained. All programs are free and include free written materials.
In today's complex world, in order to insure estate plans are legally set up, people need to know exactly where they stand so that they can avoid mistakes that can have a catastrophic impact on your family and you. We also sponsor the website njwillsprobatelaw.com which contains 25 articles on Elder law and Probate. We would like to speak with you regarding the Wills Seminars. Very truly yours,
KENNETH A. VERCAMMEN

Beyond Signing Checks

In addition to managing your day-to-day financial affairs, your attorney-in-fact can take steps to implement your estate plan. Although an agent cannot revise your will on your behalf, some jurisdictions permit an attorney-in-fact to create or amend trusts for you during your lifetime, or to transfer your assets to trusts you created. It is prudent to include in the Power of Attorney a clear statement of whether you wish your agent to have these powers.

Gifts are an important tool for many estate plans, and your attorney-in-fact can make gifts on your behalf, subject to guidelines that you set forth in your Power of Attorney. For example, you may wish to permit your attorney-in-fact to make "annual exclusion" gifts (currently up to $10,000 in value per recipient per year) on your behalf to your children and grandchildren. It is important that the lawyer who prepares your Power of Attorney draft the document in a way that does not expose your attorney-in-fact to unintended estate tax consequences. While some states permit attorneys-in-fact to make gifts as a matter of statute, others require explicit authorization in the Power of Attorney.

Attorneys Permitted as Executor

Many people wishing to have a new Will prepared are uncertain as to who to select as Executor. The Rules of Professional Conduct permit an attorney to serve as Executor of an estate. The following are 5 reasons why people have selected attorneys as Executors:

1. Attorneys who are not family members are not influenced by past family concerns or squabbles. Attorneys often have the staff and resources to liquidate assets, do paperwork, pay creditors and distribute assets to beneficiaries.

2. There may be no family members in New Jersey to go to Surrogate's office and qualify as Executor.

3. Family members not able to open and balance check-book and financial records due to age or inexperience.

4. No one in family wants to be executor.

5. Children fight amongst each other - Attorneys are independent.

The last thing you want is your heirs arguing over their inheritances after you are gone. So, to avoid hard feelings and even legal disputes, here are few helpful tips to consider:

Make a valid Will. A Will is a legal record to tell your loved ones how you want your property divided. Leaving a valid Will is the best way to be clear about your desires and wishes. Without a Will, the state in which you live Will distribute your assets for you according to law.

Don't leave verbal instructions to your heirs. Oral instructions don't have any legal effect. For example, don't leave your business in your Will to the oldest child, but then verbally ask that child to share the proceeds with your other children after your death. Your oldest child doesn't have any legal obligations to do so, and you could - unintentionally - create hard feelings among your children.

Keep your Will updated. Your Will needs to be updated as major changes take place in your life such as marriage, divorce, birth of a grandchild, buying new property or selling existing property. An outdated Will can be just as damaging to your family as no Will at all. When planning the distribution of your estate, it is best to consult your legal advisor to make sure your wishes are carried out.

Asset Protection

A number of techniques can be used to protect assets against estate taxes and the claims of creditors. This article reviews some of the techniques that should be considered. Asset protection strategies should be examined in light of your overall business, tax, and estate planning goals. In addition special care should be taken to avoid running afoul of fraudulent transfer laws.

Estate Planning

Unified gift and estate tax credit. This credit allows each taxpayer to shield up to $600,000 from estate and gift taxes. To make the most of the credit, married couples should consider transferring assets so that each spouse holds at least $600,000.

Annual gift tax exclusion. Taxpayers are permitted to make annual tax-free gifts of up to $10,000 per recipient ($20,000 for gifts made by a married couple). These gifts allow taxpayers to transfer large amounts of wealth to family members while reducing their taxable estates and placing the transferred assets beyond the reach of creditors.

Trust. Assets transferred to a spouse on death are generally free from estate taxes under the marital deduction. Properly structured testamentary trust permit a couple to make the most of the marital deduction and to provide income for the surviving spouse, protect the assets against creditors claims, and preserve the assets for their children.

Form of Ownership The manner in which title to properly is held can have a significant impact on the propertys vulnerability to creditor claims. For example, property held by a husband and wife as joint tenants with rights of survivorship can generally be used to satisfy the debts of either spouse. But property held as tenants by the entireties can only be used to satisfy joint liabilities. If one spouse has greater liability exposure (e.g., a physician), it may be a good idea for the other spouse to hold title to the personal residence and other assets as separate property.

Note: The techniques available vary depending on the laws of the state in which the couple resides or in which the property is located.

Homestead property. In many states, a primary residence, or homestead, is exempt from creditor claims. An effective asset protection strategy is to use nonexempt assets to pay down mortgage on an exempt residence.

Family Businesses Family limited partnerships. A family limited partnership allows senior family members to transfer a significant portion of a family business or property to younger family members without giving up control, while reducing estate taxes and providing limited protection against creditors.

Buy/sell agreements. Properly structured buy/sell arrangements among family business owners can often be used to establish the value of the business for estate tax purposes.

Estate freezes. Estate freeze techniques allow a business owner to shift the benefits of future appreciation to the younger generation (and to remove that appreciation in value from his or her estate) while retaining control of the business. The rules that apply to estate freezes are very complex, so careful planning is critical.

Qualified retirement plans. Qualified retirement plan accounts and benefits are generally exempt from the claims of creditors. IRAs offer some, but less, protection.

Non qualified deferred compensation. This is simply an agreement by the company to pay for an employees services at a future date. If properly structured, these funds are not taxed until they are received and may be protested from creditors.

Life Insurance Trusts A properly structured irrevocable life insurance trust can be used to protect the policy and proceeds against creditor claims and remove the proceeds from the insureds taxable estate.

Offshore Trusts A foreign asset protection trust (APT), typically established in a foreign country that does not enforce U.S. judgments, may shield assets from litigation awards and offer some protection against creditors (but it cant be used to hide assets from current creditors). APTs are complex and expensive, and the grantor must be willing to place the trust assets beyond his or her reach for a significant amount of time. However, for people whose professions or other circumstances expose them to a high degree of risk, an APT may be worth a look.

Annuities and Retirement Benefits

You may be entitled to receive some type of retirement benefit under an employee benefit plan offered by your employer or have an Individual Retirement Account (IRA). Typically, a deferred compensation or retirement benefit plan will provide for the payment of certain benefits to beneficiaries designated by the employee in the event of the employees death before retirement age. After retirement, the employee may elect a benefit option that will continue payments after his or her death to one or more of the designated beneficiaries. Certain spousal annuities are now mandated by law and may be waived only with the spouses properly witnessed signed consent. The various payment options will be treated differently for tax purposes. Any person entitled to retirement benefits should seek competent advice as to the payment options available under his or her retirement plan and the tax consequences of each.

Advice to the Executors of an Estate

The New Probate Statute of NJ revised various sections of the New Jersey law on Wills and estates. law makes a number of substantial changes to the provisions governing the administration of estates and trusts in New.

Duty of Executor in Probate Estate Administration

1. Conduct a thorough search of the decedents personal papers and effects for any evidence which might point you in the direction of a potential creditor;

2. Carefully examine the decedents checkbook and check register for recurring payments, as these may indicate an existing debt;

3. Contact the issuer of each credit card that the decedent had in his/her possession at the time of his/ her death;

4. Contact all parties who provided medical care, treatment, or assistance to the decedent prior to his/her death;

Your attorney will not be able to file the NJ inheritance tax return until it is clear as to the amounts of the medical bills. Medical expenses can be deducted in the inheritance tax.

Under United States Supreme Court Case, Tulsa Professional Collection Services, Inc., v. Joanne Pope, Executrix of the Estate of H. Everett Pope, Jr., Deceased, the Personal Representative in every estate is personally responsible to provide actual notice to all known or readily ascertainable creditors of the decedent. This means that is your responsibility to diligently search for any readily ascertainable creditors.

Other duties/ Executor to Do

Bring Will to Surrogate

Apply to Federal Tax ID #

Set up Estate Account at bank (pay all bills from estate account)

Pay Bills

Notice of Probate to Beneficiaries (Attorney can handle)

If charity, notice to Atty General (Attorney can handle)

File notice of Probate with Surrogate (Attorney can handle)

File first Federal and State Income Tax Return [CPA- ex Marc Kane]

Prepare Inheritance Tax Return and obtain Tax Waivers (Attorney can handle)

File waivers within 8 months upon receipt (Attorney can handle)

Prepare Informal Accounting

Prepare Release and Refunding Bond (Attorney can handle)

Obtain Child Support Judgment clearance (Attorney will handle)

Lets review the major duties involved-

In General. The executors job is to (1) administer the estate--i.e., collect and manage assets, file tax returns and pay taxes and debts--and (2) distribute any assets or make any distributions of bequests, whether personal or charitable in nature, as the deceased directed (under the provisions of the Will). Lets take a look at some of the specific steps involved and what these responsibilities can mean. Chronological order of the various duties may vary.

Probate. The executor must probate the Will. Probate is a process by which a Will is admitted. This means that the Will is given legal effect by the court. The courts decision that the Will was validly executed under state law gives the executor the power to perform his or her duties under the provisions of the Will.

An employer identification number (EIN) should be obtained for the estate; this number must be included on all returns and other tax documents having to do with the estate. The executor should also file a written notice with the IRS that he/she is serving as the fiduciary of the estate. This gives the executor the authority to deal with the IRS on the estates behalf.

Pay the Debts. The claims of the estates creditors must be paid. Sometimes a claim must be litigated to determine if it is valid. Any estate administration expenses, such as attorneys, accountants and appraisers fees, must also be paid.

Manage the Estate. The executor takes legal title to the assets in the probate estate. The probate court will sometimes require a public accounting of the estate assets. The assets of the estate must be found and may have to be collected. As part of the asset management function, the executor may have to liquidate or run a business or manage a securities portfolio. To sell marketable securities or real estate, the executor will have to obtain stock power, tax waivers, file affidavits, and so on.

Take Care of Tax Matters. The executor is legally responsible for filing necessary income and estate-tax returns (federal and state) and for paying all death taxes (i.e., estate and inheritance). The executor can, in some cases be held personally liable for unpaid taxes of the estate. Tax returns that will need to be filed can include the estates income tax return (both federal and state), the federal estate-tax return, the state death tax return (estate and/or inheritance), and the deceaseds final income tax return (federal and state). Taxes usually must be paid before other debts. In many instances, federal estate-tax returns are not needed as the size of the estate will be under the amount for which a federal estate-tax return is required.

Often it is necessary to hire an appraiser to value certain assets of the estate, such as a business, pension, or real estate, since estate taxes are based on the fair market value of the assets. After the filing of the returns and payment of taxes, the Internal Revenue Service will generally send some type of estate closing letter accepting the return. Occasionally, the return will be audited.

Distribute the Assets. After all debts and expenses have been paid, the executor will distribute the assets. Frequently, beneficiaries can receive partial distributions of their inheritance without having to wait for the closing of the estate.

Under increasingly complex laws and rulings, particularly with respect to taxes, in larger estates an executor can be in charge for two or three years before the estate administration is completed. If the job is to be done without unnecessary cost and without causing undue hardship and delay for the beneficiaries of the estate, the executor should have an understanding of the many problems involved and an organization created for settling estates. In short, an executor should have experience

At some point in time, you may be asked to serve as the executor of the estate of a relative or friend, or you may ask someone to serve as your executor. An executors job comes with many legal obligations. Under certain circumstances, an executor can even be held personally liable for unpaid estate taxes. Lets review the major duties involved, which weve set out below.

In General. The executors job is to (1) administer the estate--i.e., collect and manage assets, file tax returns and pay taxes and debts--and (2) distribute any assets or make any distributions of bequests, whether personal or charitable in nature, as the deceased directed (under the provisions of the Will). Lets take a look at some of the specific steps involved and what these responsibilities can mean. Chronological order of the various duties may vary.

Probate. The executor must probate the Will. Probate is a process by which a Will is admitted. This means that the Will is given legal effect by the court. The courts decision that the Will was validly executed under state law gives the executor the power to perform his or her duties under the provisions of the Will.

An employer identification number (EIN) should be obtained for the estate; this number must be included on all returns and other tax documents having to do with the estate. The executor should also file a written notice with the IRS that he/she is serving as the fiduciary of the estate. This gives the executor the authority to deal with the IRS on the estates behalf.

Pay the Debts. The claims of the estates creditors must be paid. Sometimes a claim must be litigated to determine if it is valid. Any estate administration expenses, such as attorneys, accountants and appraisers fees, must also be paid.

Manage the Estate. The executor takes legal title to the assets in the probate estate. The probate court will sometimes require a public accounting of the estates assets. The assets of the estate must be found and may have to be collected. As part of the asset management function, the executor may have to liquidate or run a business or manage a securities portfolio. To sell marketable securities or real estate, the executor will have to obtain stock power, tax waivers, file affidavits, and so on.

Take Care of Tax Matters. The executor is legally responsible for filing necessary income and estate-tax returns (federal and state) and for paying all death taxes (i.e., estate and inheritance). The executor can, in some cases be held personally liable for unpaid taxes of the estate. Tax returns that will need to be filed can include the estates income tax return (both federal and state), the federal estate-tax return, the state death tax return (estate and/or inheritance), and the deceaseds final income tax return (federal and state). Taxes usually must be paid before other debts. In many instances, federal estate-tax returns are not needed as the size of the estate will be under the amount for which a federal estate-tax return is required.

Often it is necessary to hire an appraiser to value certain assets of the estate, such as a business, pension, or real estate, since estate taxes are based on the fair market value of the assets. After the filing of the returns and payment of taxes, the Internal Revenue Service will generally send some type of estate closing letter accepting the return. Occasionally, the return will be audited.

Distribute the Assets. After all debts and expenses have been paid, the distribute the assets with extra attention and meticulous bookkeeping by the executor. Frequently, beneficiaries can receive partial distributions of their inheritance without having to wait for the closing of the estate.

Under increasingly complex laws and rulings, particularly with respect to taxes, in larger estates an executor can be in charge for two or three years before the estate administration is completed. If the job is to be done without unnecessary cost and without causing undue hardship and delay for the beneficiaries of the estate, the executor should have an understanding of the many problems involved and an organization created for settling estates. In short, an executor should have experience.

Kenneth A. Vercammen is a Middlesex County, NJ trial attorney who has published 125 articles in national and New Jersey publications on Probate and litigation topics. He often lectures to trial lawyers of the American Bar Association, New Jersey State Bar Association and Middlesex County Bar Association. He is Chair of the American Bar Association Estate Planning & Probate Committee. He is also Editor of the ABA Elder Law Committee Newsletter

He is a highly regarded lecturer on litigation issues for the American Bar Association, ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published by New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer. He is the Editor in Chief of the New Jersey Municipal Court Law Review. Mr. Vercammen is a recipient of the NJSBA- YLD Service to the Bar Award.

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, and contested Probate hearings.