Kenneth Vercammen & Associates, P.C.
2053 Woodbridge Ave.
Edison, NJ 08817
(732) 572-0500

Tuesday, October 4, 2016

Probate Contests

Do you think youre entitled to money or might be entitled to money from an estate or trust? Do you believe that someone is unfairly claiming money or property that is rightfully yours? Has The Executor of Administrator of the Estate not done their job? If so, and you are a prospective plaintiff or defendant, then you may need an attorney to protect your rights.  Ken Vercammen’s office charges a $200 consult fee either in person or over the phone.
Executor Duties and Responsibilities
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.
Step 1: 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.
Step 2: 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.
Step 3: 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.
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.
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.
Step 4: 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.
Step 5: 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.
WHO SHOULD SERVE AS EXECUTOR? The executors legally imposed fiduciary duty is to act in all ways in the best interests of the estate and its beneficiaries. The duties of an executor can be difficult and challenging and should not be taken lightly.
We believe an executor needs not only the skills, training, and experience necessary to do the project--casual or part-time attention is not likely to achieve success.
Under increasingly complex laws and rulings, particularly with respect to taxes, 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.
 Will/Trust Inheritance Contests
 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 immediately hire an attorney to file a Caveat to the Will.
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
     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.
     If there is no dispute on the validity of the Will, sometimes the Executor does not do their job and you want to have the Executor removed and replaced.

Under New Jersey Law, the person selected as an executor of a Will have numerous legal responsibilities following the death of the person who signed the Will. Primarily, they have a duty to probate the Will, liquidate assets, pay bills and taxes, file all necessary court and tax returns, and then distribute the assets to beneficiaries 
         Unfortunately, the Executor occasionally fails to timely carry out their duties. They may fail to timely file tax returns, fail to keep records, misappropriate assets or ignore instructions under the Will.  
       In this case the Executor __ has failed to comply with the Duties of Executor in Probate & Estate Administration to:
1. Conduct a thorough search of the decedent's personal papers and effects for any evidence which might point them in the direction of a potential asset, namely mineral rights;
2. Keep records of expenses
3. Timely Sell real estate
4 Timely File required inheritance tax returns and provide a copy to Kim 
     It is unclear if the executor timely preformed the below duties:
Apply to Federal Tax ID #
Set up Estate Account at bank (pay all bills from estate account)
Pay Bills
Notice of Probate to Beneficiaries  
File notice of Probate with Surrogate  
File first Federal and State Income Tax  
Prepare Inheritance Tax Return and obtain Tax Waivers  
File waivers within 8 months upon receipt  
Prepares a accurate Informal Accounting
    In General. The executor's 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
         Do you think you're entitled to money or might be entitled to money from an estate or trust?  Do you believe that someone is unfairly claiming money or property that is rightfully yours?  If so, and you are a prospective plaintiff or defendant, then you may need an attorney to protect your rights.

         These areas are extremely complex, and you should not attempt to reach a decision on whether or not to take action (and, if so what action to take) without the assistance of counsel.
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.
4:84-3. Contested Administration
Where administration of an estate has been contested, the judgment of the Superior Court granting administration shall direct issuance and recording of letters of administration by the Surrogates Court.
4:84-4. Appointment of Substituted Trustees
An action for the appointment of a substituted trustee (a trustee not named in the trust document) of an inter vivos or testamentary trust shall be brought pursuant to R. 4:83. The complaint shall have attached a copy of the trust instrument and the acceptance by the person or persons seeking the appointment. The order to show cause shall be served upon all persons having an interest in the trust, vested or contingent, except as otherwise provided by R. 4:26-3 (virtual representation), and upon any trustees then serving. The judgment shall direct the issuance by the Surrogates Court of letters of trusteeship.
4:84-5. Appointment of Administrator Pendente Lite or Other Limited Administrator
No order appointing an administrator pendente lite or other limited administrator shall be entered by the Superior Court without either notice to the persons in interest or their written consent, unless it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable damage will result before notice can be served and a hearing had thereon. If an order is granted without notice, it shall give any person in interest leave to move for the discharge of the administrator on no more than 2 days notice. This rule shall not apply to the administrator ad prosequendum in an action for wrongful death.
4:85-1. Complaint; Time for Filing
If a will has been probated by the Surrogates Court or letters testamentary or of administration, guardianship or trusteeship have been issued, any person aggrieved by that action may, upon the filing of a complaint setting forth the basis for the relief sought, obtain an order requiring the personal representative, guardian or trustee to show cause why the probate should not be set aside or modified or the grant of letters of appointment vacated, provided, however, the complaint is filed within four months after probate or of the grant of letters of appointment, as the case may be, or if the aggrieved person resided outside this State at the time of the grant of probate or grant of letters, within six months thereafter. If relief, however, is sought based upon R. 4:50-1(d), (e) or (f) or R. 4:50-3 (fraud upon the court) the complaint shall be filed within a reasonable time under the circumstances. The complaint and order to show cause shall be served as provided by R. 4:67-3. Other persons in interest may, on their own motion, apply to intervene in the action.
4:85-2. Enlargement of Time
The time periods prescribed by R. 4:85-1 may be extended for a period not exceeding 30 days by order of the court upon a showing of good cause and the absence of prejudice.
4:85-3. After-Discovered Will
(a) Order to Show Cause. Where administration has been granted and subsequently a will is offered for probate or where probate of a will has been granted and subsequently a later will is offered for probate, the person offering such will may, upon the filing of a complaint, move without notice for an order requiring all interested persons to show cause why probate of such will should not be granted. The complaint shall be filed in the county where the original administration or probate was granted. If, on the return date or thereafter, new probate is granted, the court shall require the administrator or prior executor to make final settlement of his or her account and thereafter shall make such order respecting commissions as is appropriate.
(b) Probate by Surrogate. If, on the return date of the order to show cause, there is no objection to the offering of the after-discovered will for probate, the Surrogate may enter an order that it be lodged for probate and thereafter proceed with probate unless a caveat has been filed or doubt arises from the face of the will.

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