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

Monday, November 27, 2017

45:27-22 Control of funeral , disposition of remains.

45:27-22  Control of funeral , disposition of remains.
 
   22. a. If a decedent, in a will as defined in N.J.S.3B:1-2, appoints a person to control the 
funeral and disposition of the human remains, the funeral and disposition shall be in accordance with the instructions of the person so appointed.  A person so appointed shall not have to be executor of the will.  The funeral and disposition may occur prior to probate of the will, in accordance with section 40 of P.L.2003, c.261 (C.3B:10-21.1).

   In the case of an active duty service member who died while on active duty in any branch or component of the United States Armed Forces, including the New Jersey National Guard called to federal active duty, the person designated by the decedent as authorized to direct disposition, as listed on the decedent's United States Department of Defense Record of Emergency Data, DD Form 93, or its successor form, shall be the person appointed to control the 
funeral and disposition of the remains of the decedent.

   If the decedent has not left a will appointing a person to control the 
funeral and disposition of the remains or the United States Department of Defense Record of Emergency Data, DD Form 93, or its successor form, is not applicable, the right to control the funeral and disposition of the human remains shall be in the following order, unless other directions have been given by a court of competent jurisdiction:

   (1)   The surviving spouse of the decedent or the surviving civil union or domestic partner; except that if the decedent had a temporary or permanent restraining order issued pursuant to P.L.1991, c.261 (C.2C:25-17 et seq.) against the surviving spouse or civil union or domestic partner, or the surviving spouse or civil union or domestic partner is charged with the intentional killing of the decedent, the right to control the 
funeral and disposition of the remains shall be granted to the next available priority class as provided in this subsection.

   (2)   A majority of the surviving adult children of the decedent.

   (3)   The surviving parent or parents of the decedent.

   (4)   A majority of the brothers and sisters of the decedent.

   (5)   Other next of kin of the decedent according to the degree of consanguinity.

   (6)   If there are no known living relatives, a cemetery may rely on the written authorization of any other person acting on behalf of the decedent.

   For purposes of this subsection "domestic partner" means a domestic partner as defined in section 3 of P.L.2003, c.246 (C.26:8A-3).

   b.   A cemetery may permit the disposition of human remains on the authorization of a 
funeral director handling arrangements for the decedent, or on the written authorization of a person who claims to be, and is believed to be, a person who has the right to control the disposition.  The cemetery shall not be liable for disposition pursuant to this authorization unless it had reasonable notice that the person did not have the right to control the disposition.

   c.   A cemetery shall not bury human remains of more than one person in a grave unless:

   (1)   directions have been given for the burials in accordance with this section on behalf of all persons so buried; or

   (2)   the rights to be buried in the grave were sold by the cemetery with explicit provision allowing separate sales of rights to burial at different depths in the grave.

   d.   A person who signs an authorization for the 
funeral and disposition of human remains warrants the truth of the facts stated, the identity of the person whose remains are disposed and the authority to order the disposition.  The person shall be liable for damages caused by a false statement or breach of warranty.  A cemetery or funeral director shall not be liable for disposition in accordance with the authorization unless it had reasonable notice that the representations were untrue or that the person lacked the right to control the disposition.

   e.   An action against a cemetery company relating to the disposition of human remains left in its temporary custody may not be brought more than one year from the date of delivery of the remains to the cemetery company unless otherwise provided by a written contract.

   L.2003, c.261, s.22; amended 2005, c.324, s.1; 2005, c.331, s.29; 2009, c.290; 2013, c.268.


Sunday, November 26, 2017

Intestacy [Someone died and no Will or Will not done correct and not admitted to probate]

Intestacy  [Someone died and no Will or Will not done correct and not admitted to probate]

Intestacy is the condition of the estate of a person who dies owning property greater than the sum of his or her enforceable debts and funeral expenses without having made a valid will or other binding declaration; alternatively where such a will or declaration has been made, but only applies to part of the estate, the remaining estate forms the "Intestate Estate". Intestacy law, also referred to as the law of descent and distribution or intestate succession statutes, refers to the body of common law that determines who is entitled to the property from the estate under the rules of inheritance.  See http://en.wikipedia.org/wiki/Intestacy
More details at
http://www.njlaws.com/litigation_involving_intestacy.html

INTESTACY
The estate of every NJ resident must be settled with the County Surrogate's Court unless the deceased owned no assets individually in New Jersey. Except in that limited circumstance, an estate must be presented to the County Surrogate before disbursement of the deceased's assets can occur. This estate settlement requirement applies whether the person died with or without a will. See http://www.co.bergen.nj.us/Surrogate/BCSC_Intest.htm
The estate of a person who dies without a will is called an "intestate" estate.   The Administrator's responsibilities include notifying the deceased's next of kin of his/her death, assembling the estate's assets and disbursing those assets according to law. The applicant need not be an attorney. In fact, most applicants complete the entire Surrogate's Court process without the need for an attorney. However, if you feel more comfortable bringing an attorney to the Surrogate's Court, you may certainly do so.
To apply to be the Administrator of an intestate estate, a person must bring the following to the County Surrogate's Court: (1) The original death certificate with raised seal; (2) An estimate of the gross value (but not an item-by-item description) of the estate covering all real estate and non-real estate (personal) assets; (3) The complete names and addresses of the deceased's next of kin; (4) A blank New Jersey check or cash for fees-the average fees, excluding bonding costs, are $150-$250);
(5) A formal, written Renunciation of the right to serve as the estate's Administrator signed (in the presence of a Notary Public) by every person, if any, who has statutory preference over the applicant to serve as the estate's Administrator.
If all the children Will not sign a renunciation, an expensive Complaint and Order to Show Cause will have to be filed. At the Superior Court hearing a beneficiary will have to convince the Judge to appoint them as the Administrator. Legal fees and court costs over $3,000. They will then have to pay for a bond usually costing over $1,000. Then later usually a Formal Accounting has to be filed.  All this could be avoided with a proper Will prepared by an Estate Planning Attorney usually costing $300-$600 each.
As a matter of law, the family members of the deceased have the first right to serve as the Administrator, in the following order of preference: spouse, children, parents, brothers and sisters. Should no family member seek appointment, then a creditor or anyone else may do so. A person who renounces the right to serve as Administrator may do so without disclaiming the right to receive any of the deceased's assets. (In contrast, by having a will, a person can choose the individual(s) he/she wishes to take charge and distribute his/her estate's assets (the "Executor(s)"). Source: See http://www.co.bergen.nj.us/Surrogate/BCSC_Intest.htm
Once the above-described five items have been received, the Surrogate will appoint the applicant as the Administrator of the intestate estate. In most cases, the Administrator must be bonded until the estate has been properly assembled and distributed. This bonding fee is in addition to the $150-250 in average fees paid by the person seeking to be approved as Administrator. Bonding is required to protect the creditors and beneficiaries of the estate from the possibility that the Administrator will misuse his/her authority to their financial detriment.
There are, however, exceptions to the bonding requirement for intestate estates. If the deceased has a surviving spouse and no surviving parent or child, the surviving spouse need not post a bond. If the deceased left a surviving spouse and a surviving parent or child, then there will be no bond required of the surviving spouse for the first $50,000 of the estate and one-half of the remainder. Otherwise, the cost of bonding is fixed on the value of the estate. Bond premiums are currently $100 per year, if the estate is worth $18,000 or less; $525 per year, if the estate is worth $100,000 or less. (By way of comparison, a person can have a simple Will drafted by an attorney for $250-$350 and the will can state that the person taking charge of the estate's assets, the "Executor", shall serve without any bond.)
After the Administrator has been appointed and bonded, the Surrogate's Court will then issue Surrogate's Certificates (also known as Letters of Administration) that are used to assemble and transfer the intestate's assets. It is recommended that you order several copies of these Certificates, especially if the assets are being held by several banks, brokerage firms, pension plans and insurance companies. They will also be needed to sell or transfer all real estate assets. Along with the Certificates, a General Information brochure regarding the New Jersey Inheritance Tax is sent by the Surrogate's Court to the Administrator by mail within 5-7 business days of his/her appointment.
Administration of the estate cannot be first completed until several additional steps are taken. First, the Administrator must gather the assets, pay the just debts and taxes, and then distribute the balance of the estate's assets in accordance with the law. Second, once all assets of the estate have been disbursed, the Administrator must have each recipient sign a Refunding Bond. The Administrator should also have the recipient(s) sign a Release at the same time. The Surrogate's Court provides, without charge, a form combining a Release and Refunding Bond. The executed Release and Refunding Bond (signed by the recipient in the presence of a Notary Public) should then be filed with the Surrogate's Court at a cost of $10.00 per Bond.
Source: See http://www.co.bergen.nj.us/Surrogate/BCSC_Intest.htm
      The laws of the State of New Jersey provide for the assets of the intestate estate to be distributed to the next of kin by "intestate succession" as follows:
I. If you die leaving a spouse but no children, grandchildren or parents, the surviving spouse receives all.

II. If you die leaving a spouse and children who are also the children of the spouse, the spouse receives the first $50,000 plus one-half of the balance of the estate. The children receive the other one-half of the balance divided equally amongst them. If one of your children dies leaving children then your grandchildren take their deceased's parent's share. However, if all of your children have died before you then all of your grandchildren will share equally.

III. If you die leaving a spouse and children who are not also the children of that spouse, the spouse receives one-half, the children receive one-half divided equally and, if applicable, the grandchildren take their deceased parent's share unless all the children are deceased. Should that occur, all the grandchildren share equally.

IV. If you die leaving children but no spouse, the children receive all divided equally among them. If there are grandchildren, they take their deceased parent's share, unless all the children are deceased. In that event, all the grandchildren share equally.

V. If you die leaving a spouse but no children or grandchildren, and if your mother or father is still living, your spouse receives the first $50,000 of your estate plus one-half of the balance and your parents (or parent, if only one survives you) receives the remainder.

VI. If you die leaving no spouse, no children, no grandchildren, no grandchildren and one or both of you parents survive you, the surviving parent or parents take all divided equally. If no parent survives, then your surviving brothers and sisters receive all divided equally.

VII. If you die leaving no surviving spouse, children, grandchildren, parents, brothers or sisters, then the estate will be divided equally among those people surviving you in the closest degree of kinship (starting with nieces and nephews) until an heir is found if possible.

VIII. If you die leaving no surviving next of kin without a Will, your estate assets escheat to the State of New Jersey.
In a related manner, in addition to the appointment of an Administrator for an intestate estate, if the count resident dies leaving a child under 18 years of age and there is no other legal guardian for that minor child, then the County Surrogate must appoint that minor child's guardian. The procedure for this appointment is similar to the application and bonding process for an Administrator in the sense that the law gives certain family members priority to serve as guardian of the deceased's minor child, while allowing those lower on the priority ladder to serve as long as the appropriate written renunciations have been received by the Surrogate. (In contrast, if the person who died had a will, the deceased could have designated the guardian(s) of his/her minor child in the will and this designation would have been binding upon the Surrogate and all others.

Source: See http://www.co.bergen.nj.us/Surrogate/BCSC_Intest.htm Copyright 2018 Vercammen Law

Friday, November 24, 2017

Public Interest three year disorderly expungement

Public Interest three year disorderly expungement

  2C:52-3 Disorderly persons offenses and petty disorderly persons offenses.
2C:52-3.Disorderly persons offenses and petty disorderly persons offenses.

a. Any person convicted of a disorderly persons offense or petty disorderly persons offense under the laws of this State who has not been convicted of any prior or subsequent crime, whether within this State or any other jurisdiction, may present an expungement application to the Superior Court pursuant to this section. Any person convicted of a disorderly persons offense or petty disorderly persons offense under the laws of this State who has also been convicted of a prior or subsequent crime shall not be eligible to apply for an expungement pursuant to this section, but may present an expungement application to the Superior Court pursuant to N.J.S.2C:52-2.

b. Any person convicted of a disorderly persons offense or petty disorderly persons offense under the laws of this State who has not been convicted of any prior or subsequent crime, whether within this State or any other jurisdiction, or who has not been convicted of a disorderly persons or petty disorderly persons offense on more than two other occasions, may, after the expiration of a period of five years from the date of his most recent conviction, payment of fine, satisfactory completion of probation or release from incarceration for any disorderly persons or petty disorderly persons offense, whichever is later, present an expungement application to the Superior Court in the county in which the conviction for the most recent disorderly persons or petty disorderly persons offense was adjudged, which contains a duly verified petition as provided in N.J.S.2C:52-7 for the disorderly persons or petty disorderly persons conviction sought to be expunged, and which may also contain additional duly verified petitions for no more than two other convictions for disorderly persons or petty disorderly persons offenses, praying that the conviction, or convictions if applicable, and all records and information pertaining thereto be expunged. The petition for each conviction appended to an application shall comply with the requirements of N.J.S.2C:52-1 et seq.

Notwithstanding the provisions of the preceding paragraph, a petition may be filed and presented, and the court may grant an expungement pursuant to this section, when the court finds:

(1)less than five years has expired from the satisfaction of a fine, but the five-year time requirement is otherwise satisfied, and the court finds that the person substantially complied with any payment plan ordered pursuant to N.J.S.2C:46-1 et seq., or could not do so due to compelling circumstances affecting his ability to satisfy the fine; or

(2)at least three years have expired from the date of his conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration, whichever is later; the person has not been convicted of a crime, disorderly persons offense, or petty disorderly persons offense since the time of the conviction; and the court finds in its discretion that expungement is in the public interest, giving due consideration to the nature of the offense, and the applicant's character and conduct since conviction. 

In determining whether compelling circumstances exist for the purposes of paragraph (1) of this subsection, a court may consider the amount of the fine or fines imposed, the person's age at the time of the offense, the person's financial condition and other relevant circumstances regarding the person's ability to pay.

amended 1981, c.290, s.43; 2015, c.261, s.3.


A Notice Regarding Bank Policy from the CouA Notice Regarding Bank Policy from the County Surrogate James S. LaCorte against using Bank of America, Chase and Wells Fargo Banksnty Surrogate James S. LaCorte against using Bank of America, Chase and Wells Fargo Banks

A Notice Regarding Bank Policy from the County Surrogate James S. LaCorte against using Bank of America, Chase and Wells Fargo Banks


As some of you may know the Surrogate’s Office is responsible for assisting residents in the orderly process of estates after the death of a Union County Resident.   As Surrogate of Union County, one of my obligations is to alert residents of potential problems with the processing of residents estates.  
Recent events concerning Bank of America, Chase and Wells Fargo Banks compel me to warn residents that their loved ones may confront severe problems when they attempt to manage their deceased loved ones assets at the time of their death.  Chase Bank has displayed in the recent past a refusal to follow New Jersey Law and instead follow their own bank instituted policy which adds expense and delay to the orderly processing of the decedents estates.  Bank of America and Wells Fargo have acted in a similar manner on many occasions.
I am therefore advising Union County Residents that commencing or continuing a banker-customer relationship with Bank of America, Chase and Wells Fargo Banks may cause several unforeseen impediments with the timely processing of your estate after your death or the death of a loved one. 
Please remember this alert when deciding to commence or continue a financial relationship with Bank of America, Chase Bank or Wells Fargo Bank. 
The Surrogate’s Office is established under Constitution of the State of New Jersey. The Surrogate is responsible for assisting residents in the orderly process of estates after the death of a Union County resident, and is obligated is to alert residents of potential problems with the processing of estates.  
http://ucnj.org/press-releases/public-info/2017/10/06/a-notice-regarding-bank-policy-from-the-county-surrogate-james-s-lacorte/

Wednesday, November 22, 2017

RULE 4:82. Matters In Which The Surrogate's Court May Not Act

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. 

RULE 4:84. Complaints In Cases In Which Surrogate's Court Not Able To Act


 RULE 4:84. Complaints In Cases In Which Surrogate's Court Not Able To Act 
4:84-1. In General 
In any case in which, under R. 4:82, the Surrogate's 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 Surrogate's Court. Letters of appointment shall then be issued by the Surrogate's Court. 
Note: Source-R.R. 5:3-1 and 5:3-7. New R. 4:84-2, based on deleted second sentence of former R. 4:80-2(a), adopted June 29, 1990 to be effective September 4, 1990. 
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 Surrogate's Court. 
Note: Source-R.R. 4:103-4; former R. 4:84-3 deleted, new caption and text adopted June 29, 1990 to be effective September 4, 1990. 
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 testatmentary 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 Surrogate's Court of letters of trusteeship. 
Note: Source-R.R. 4:100-2 and 4:100-3. Former R. 4:81-2 and 4:81-3 deleted and new R. 4:84-4 adopted June 29, 1990 to be effective September 4, 1990; amended July 5, 2000 to be effective September 5, 2000. 
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. 

Note: Source-R.R. 4:99-8. Amended July 26, 1984 to be effective September 10,