Objector to Probate accounting must show breach of fiduciary duty

In the Matter of J.F., N.J. Super. App. Div. (per curiam) (14 pp.) Sole beneficiary under a will appealed the probate order approving the settlement of the first and final formal accounting of the guardian who managed the incapacitated deceased’s estate during her final years. Beneficiary alleged that guardian failed to list a Florida condominium at a reasonable price, objected to the upkeep and repair charges for the property, objected to the costs for trips to Florida, argued accounting fees were unreasonable and argued guardian’s income and commission should be forfeit for her “willful gross misconduct.” The trial judge rejected all of the beneficiary’s exceptions and beneficiary appealed. The court found that there was no evidence to show a breach of fiduciary duty in guardian’s handling of the Florida property and the trips to Florida were necessary to assess and marshal her ward’s assets and were for the ward’s benefit. Additionally, N.J. law granted a fiduciary the authority to employ accountants. Furthermore, the trial court did not abuse its discretion in awarding counsel fees to guardian.

What is per stirpes?

What is per stirpes?

The Uniform Probate Code states:

SECTION 2-709. REPRESENTATION; PER CAPITA AT EACH GENERATION; PER STIRPES.

(a) [Definitions.] In this section:
(1) “Deceased child” or “deceased descendant” means a child or a descendant

who either predeceased the distribution date or is deemed to have predeceased the distribution date under Section 2-702.

(2) “Distribution date,” with respect to an interest, means the time when the interest is to take effect in possession or enjoyment. The distribution date need not occur at the beginning or end of a calendar day, but can occur at a time during the course of a day.

(3) “Surviving ancestor,” “surviving child,” or “surviving descendant” means an ancestor, a child, or a descendant who neither predeceased the distribution date nor is deemed to have predeceased the distribution date under Section 2-702.

 (b) [Representation; Per Capita at Each Generation.] If an applicable statute or a governing instrument [The Will or Trust]  calls for property to be distributed “by representation” or “per capita at each generation,” the property is divided into as many equal shares as there are (i) surviving descendants in the generation nearest to the designated ancestor which contains one or more surviving descendants (ii) and deceased descendants in the same generation who left surviving descendants, if any. Each surviving descendant in the nearest generation is allocated one share. The remaining shares, if any, are combined and then divided in the same manner among the surviving descendants of the deceased descendants as if the surviving descendants who were allocated a share and their surviving descendants had predeceased the distribution date.

(c) [Per Stirpes.] If a governing instrument [The Will or Trust]  calls for property to be distributed “per stirpes,” the property is divided into as many equal shares as there are (i) surviving children of the designated ancestor and (ii) deceased children who left surviving descendants. Each surviving child, if any, is allocated one share. The share of each deceased child with surviving descendants is divided in the same manner, with subdivision repeating at each succeeding generation until the property is fully allocated among surviving descendants.

(d) [Deceased Descendant With No Surviving Descendant Disregarded.] For the purposes of subsections (b) and (c), an individual who is deceased and left no surviving descendant is disregarded, and an individual who leaves a surviving ancestor who is a descendant of the designated ancestor is not entitled to a share.

Comment

Purpose of New Section. This new section provides statutory definitions of “representation,” “per capita at each generation,” and “per stirpes.” Subsection (b) applies to both private instruments and to provisions of applicable statutory law (such as Sections 2-603, 2- 706, and 2-707) that call for property to be divided “by representation.” The system of representation employed is the same as that which is adopted in Section 2-106 for intestate succession.

http://www.uniformlaws.org/shared/docs/probate%20code/upc%202010.pdf

Probate fees in probate discussed IN THE MATTER OF THE ESTATE OF ALICE JOYCE GRAFER, DECEASED.

Probate fees in probate discussed IN THE MATTER OF THE

ESTATE OF ALICE JOYCE

GRAFER, DECEASED.

———————————————————————————

January 24, 2017

Submitted November 3, 2016 – Decided 

Before Judges Lihotz and Hoffman.

On appeal from Superior Court of New Jersey, Chancery Division, Probate Part, Warren County, Docket No. P-10-183.

Russo Law Offices, LLC, attorneys for appellant Robert Grafer, Jr. (Brad M. Russo, on the brief).

Respondent Laura Brawner has not filed a brief.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0 

PER CURIAM

Appellant Robert Grafner, Jr. (Robert), executor of the estate of his late mother, appeals from the October 13, 2015 Probate Part order denying his motion for counsel fees. On appeal, Robert argues the judge improperly imposed his own "policy considerations to arbitrarily deny" his "otherwise legally justifiable application." We have considered this argument in light of the record and the applicable legal principles. We affirm.

We discern the following facts from the record. Alice Joyce Grafer (the decedent) died on January 22, 2010, survived by two adult children, Laura Brawner (Laura) and Robert. On April 21, 2010, her Last Will and Testament was admitted to probate. The Will divided her estate between Robert and Laura, "in equal shares." 

At the time of her death, the decedent's probate estate consisted of a house (appraised value of $190,000), a mutual fund account (approximate value of $40,000), and an automobile (approximate value of $6,900). The decedent also held various non-probate assets, all listing Robert as joint tenant or beneficiary. These non-probate assets totaled $183,815.05. 

According to Robert, soon after their mother's death, Laura expressed a desire to "cash out" her interest in the estate as soon as possible. She was not interested in maintaining any interest in the house as an investment property, while Robert was interested in owning the house as a long-term investment. 

Between March 8, 2010 and August 27, 2010, Robert made three distributions to Laura totaling $115,000. According to Robert, these transfers were made to satisfy Laura's interest in the house and the estate. However, the record contains no evidence of any estate administration formalities accompanying these distributions, such as an accounting, an appraisal, or the execution of refunding bonds and releases. 

In December 2014, Laura filed a verified complaint in the Probate Part to compel Robert to provide an accounting of estate assets. Laura alleged Robert "has refused to provide an accounting of the estate assets . . . despite reasonable and repeated demands." 

On February 17, 2015, Robert filed an answer denying all allegations of impropriety. He also filed his own verified complaint, alleging he had an agreement with Laura to purchase her interest in their mother's house, and further asserting Laura was overpaid her interest in the estate. Robert alleged the "net residual estate equals $211,848.68," and as a one-half beneficiary, Laura's "inheritance equals $105,924.34;" since Laura had already received $115,000, she "was overpaid by $9,075.66." Robert also filed an accounting with the Warren County Surrogate.

The court eventually held a two-day plenary hearing to address the issues raised by the parties and Robert's accounting. At the conclusion of the hearing, the court entered an order, which stated:

1. The accounting submitted by the Executor is approved in part and rejected in part.

2. There is a residual estate remaining in the amount of $20,965.81

3. The house has been removed from the accounting as it was transferred by a separate and binding agreement between the parties.

4. Counsel may submit application for counsel fees, if they wish, to be considered by the Court.

Counsel for both parties submitted requests for counsel fees. Robert's counsel submitted a request for $15,317.25 and Laura's counsel submitted a request for $7,790. After noting the remaining residual estate was $20,965.81, the court explained its reasons for denying both application:

Both requests exceed the value of the residual estate. Both parties were responsible for the protracted litigation, which [Laura] eventually admitted that she knew all along that the house was purchased from her pursuant to an agreement with [Robert].

[Robert] reluctantly agreed that he had not been as forthcoming as he could have been providing information to his sister and perhaps if he had, the court feels that his sister probably would have resolved the matter without the necessity of a suit.

Since I can find that both parties in some respect share responsibility for the litigation which proceeded, it would be unjust and unfair to award counsel fees for either party, as the amount of success obtained by the extensive litigation is minuscule compared with the attorney's fees. Therefore, the Court will impose the American rule and each party shall bear their own expenses.

We review a trial judge's decision to award attorneys' fees under an abuse of discretion standard.  Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 443-44 (2001). "Trial courts have considerable latitude in resolving fee applications."  Grow Co., Inc. v. Chokshi, 424 N.J. Super. 357, 367 (App. Div. 2012). A reviewing court "will disturb a trial court's award of counsel fees only on the rarest of occasions, and then only because of a clear abuse of discretion."  Litton Indus. v. IMO Indus., 200 N.J. 372, 386 (2009) (citations and internal quotation marks omitted).

Rule 4:42-9(a)(3) provides for the discretionary award of counsel fees in probate actions. 

In awarding attorneys fees in probate the trial judge must "exercise . . . sound discretion to prevent misuse of the judicial process and the mulcting of the estate."  In re Will of Caruso, 18 N.J. 26, 36 (1955)

Robert argues the motion court improperly applied its own "policy considerations" in denying his application, in contravention of our holding in In re Probate of the Alleged Will and Codicil of Macool, 416 N.J. Super. 298 (App. Div. 2010). In that case, we held that the Probate Part could not reduce an attorney's fee request by fifteen percent in accordance with the judge's personal policy of "discouraging or 'deterring'" fee-shifting cases.  Id. at 314. 

Robert correctly states our holding in Macool, that a trial judge's award of counsel fees could not be based on the judge's personal policy.  Id. at 313. We conclude, however, such considerations did not motivate the judge in this case, as the judge identified specific factors supporting his decision.

Robert was fairly sloppy in his performance of work as an executor and felt that he had no obligation to explain to his sister what the assets of the [E]state were and what had happened with the Estate's expenses and disbursements from the estate. Robert never cooperated in the filing of an accounting until [Laura] filed her complaint demanding in accounting and other relief.

An executor, in performing the duties assumed, "must generally act with the care and skill which a [person] of ordinary prudence would exercise under the circumstances."  In re Estate of Bayles, 108 N.J. Super. 446, 453-454 (App. Div. 1970). Robert's lack of cooperation, causing Laura to file litigation to receive the accounting she should have received long ago, clearly fell short of the ordinary prudence standard.

The trial judge's denial of attorney fees did not constitute an abuse of discretion, let alone a clear abuse of discretion. The order will not be disturbed.

Affirmed.

Metuchen Public Defender and Edison Law Office Volunteer Internships To Career Services/ Placement

 Metuchen Public Defender and Edison Law Office Volunteer Internships 

To Career Services/ Placement

Thank you for recent letter regarding a job fair. I cannot attend due to my court schedule. Please post our internship for your students.

          The Public Defenders provide Indigent individuals charged with criminal or serious motor vehicle charges with free or limited cost legal defense. The Public Defender of Metuchen invites students interested in attending law school or a career in law enforcement to apply to serve as volunteer interns. Volunteer Law Clerk interns will attend Wednesday evening and occasional Friday morning court sessions.

         The Kenneth Vercammen & Associates Law Office in Edison also offers a law clerk volunteer internship. Information regarding our Law Office plus articles on some of the type of matters students may work on  can be found on the Internet website www.njlaws.com. Please post these positions.

         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

                  Very truly yours,

                  KENNETH  VERCAMMEN, Managing Attorney

VOLUNTEER LEGAL INTERNS NEEDED

PUBLIC DEFENDER OF METUCHEN   Please post!

Court times: WEDNESDAY 1pm PM [approx]- 8:30 PM,   every other Friday 9-12, plus hearing preparation work.

Volunteer Internship Description:

-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.

         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.

         Program lasts 12 weeks. Minimum time commitment September- May is 10 hours per week.

         For Summer- College graduates and Law students only. Minimum Volunteer time commitment in summer- 18 hours per week.  Send cover letter and resume. After sending resume, call to schedule interview

 732-572-0500.

         We sponsor a statewide website www.njlaws.com with information on criminal,  litigation, personal injury, 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. We attempt to give assignments, which will be meaningful and memorable but, nevertheless, expect that interns will pitch in on whatever needs to be done. 

         Mail or fax  cover letter and resume to

Kenneth Vercammen, Esq.

Public Defender for the Borough of Metuchen

c/o 2053 Woodbridge Ave., Edison, NJ 08817              

 Fax 732-572-0030

LAW OFFICE Fall  & Spring

VOLUNTEER INTERNSHIPS -   EDISON, N.J. 

          Volunteer students will have an 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.

Work on Criminal, Municipal Court and DWI cases:

1. Contact Municipal Prosecutors to obtain discovery and police reports
2. Contacts with Court and County Prosecutor’s Office
3. Prepare hearing notice to clients
4. Speak with clients and witnesses prior to hearings
5. Review accident reports and witness statements
6. Attend hearings and motions
7. Prepare end of case letters to client

Added recent Criminal and Civil cases to our Blog

Add new court rules and statute to the Criminal statute blog 

WILLS & PROBATE PRACTICE

1.    Act as formal witness to Wills, Power of Attorney and other legal documents

2.    Work on Motions to remove executors and compel accounting

3.    Publicize Will seminars and attend programs free of charge

Work on Community Relations and marketing projects including submitting articles to legal websites and search  engines and Blogs

Fall & Spring interns must work between 10-21 hours per week between Monday and Friday, time and days to be selected by the student. Participants must stick to days and hours selected and make up missed days. The legal interns must work a minimum of 12 weeks.  Longer hours or weeks permitted. [Summer internship is minimum 18 hours per week, 12 weeks- college graduates and Law students only]

         Interested students must mail or fax a cover letter and resume.

         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. 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.  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. Additional information on internship at http://www.njlaws.com/intern.htm

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

Kenneth Vercammen & Associates, PC

 2053 Woodbridge Avenue,  

Edison, NJ 08817       

 [near Rt 287 and the NJ Turnpike]

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

  

Metuchen Public Defender Volunteer Internships 

About Mentor Program Director: Kenneth Vercammen is an Edison, Middlesex County, NJ trial attorney.    Mr. Vercammen has published 125 articles in national and New Jersey publications on criminal, traffic, DWI, probate, estate planning, and litigation topics. He has been selected to write the book on Criminal Law for the American Bar Association. He often lectures to trial lawyers of the American Bar Association, New Jersey State Bar Association and Middlesex County Bar Association. 

         Kenneth Vercammen was the NJ State Bar Municipal Court Attorney of the =and past president of the Middlesex County Municipal Prosecutor's Association. He is the past chair of the NJ State Bar Association Municipal Court Section and is the Co-Chair of the ABA Criminal Law committee, GP Division.

       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. As the Editor in Chief of the New Jersey Municipal Court Law Review. Mr. Vercammen is also 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 for trial of litigated matters.  He has appeared in Courts throughout New Jersey several times each week on Criminal personal injury matters, Municipal Court trials, and contested Probate hearings.  He serves as the Editor of the popular legal websites www.njlaws.com and www.BeNotGuilty.com

He has served as a Special Acting Prosecutor in nine different cities and towns in New Jersey and also successfully handled over One thousand Municipal Court and Superior Court matters in the past 25 years. Kenneth Vercammen was included in the 2013 “Super Lawyers” list published by Thomson Reuters. He was a member of the Law Review and top 10% law school grad.