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

Wednesday, December 30, 2020

2021 Annual Update Wills and Estate Planning Free Seminar Facebook Live


2021 Annual Update Wills and Estate Planning Free Seminar Facebook Live


January 13, 2021 at 12:15-1:00 PM  and again 5pm sharp

Law Office of Kenneth Vercammen, 

2053 Woodbridge Ave, Edison, NJ 08817  

   “ In office” program is limited to 9 people. Please bring a canned food donation. 

Program  can be watched on your computer or IPhone via Facebook live

https://www.facebook.com/events/3257702584334022

      COST: Free for in person if you pre-register by email. Complimentary materials provided at 12:00 sharp. Please bring a canned food donation, which will be given to the St. Matthews’s St. Vincent DePaul Food Bank.  

New Main Topics:

1. Handling Probate during Covid and while Government offices closed

2. Dangers If You Have No Will or documents invalid

3. Getting your Estate Planning Documents done when you can’t go into a law office

4. What goes into a Will

5. Power of Attorneys recommendations

6. Living Will & Advance Directive for Medical Care

7. Administering the Estate/Probate /Surrogate

8. Avoiding unnecessary expenses and saving your family money

        Please email us if you plan on attending or if you would like us to email the materials. 

   SPEAKER: Kenneth Vercammen, Esq.                 

(Author- ABA Wills and Estate Administration)

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

https://www.facebook.com/events/3257702584334022

          Co-Sponsor: Middlesex County Estate Planning Council

To attend in person email VercammenLaw@Njlaws.com

Other Information call 732-572-0500

Can’t attend?  We can email you materials

Send email to VercammenLaw@Njlaws.com

Can’t attend?  We can email you materials Send email to VercammenLaw@Njlaws.com

Free Will Seminars and Speakers Bureau for Groups
SPEAKERS BUREAU
         At the request of senior citizen groups, unions, and Middlesex County companies and organizations, the " Speakers Bureau " is a service designed to educate citizens about how laws affect their lives and how the judicial system operates.  We have attorneys available to speak to businesspersons, educational, civic and social organizations on a wide range of topics during business hours.  If your organization in Central NJ would like to schedule a Will & Estates seminar, call Kenneth Vercammen’s Law Office at 732-572-0500 or email Vercammenlaw@njlaws.com

     10 years ago the AARP Network Attorneys of the Edison/Metuchen/Woodbridge area several years ago established a community Speakers Bureau to provide educational programs to AARP and senior clubs, Unions and Middlesex County companies. Now, Ken Vercammen, Esq. and volunteer attorneys of the Middlesex County Estate Planning Council have provided Legal Rights Seminars to hundreds of seniors, business owners and their employees, unions, clubs and non-profit groups 
Details on free programs available

     These quality daytime educational programs will educate and even entertain. Clubs and companies are invited to schedule a free seminar. The following Seminars are now available: 
1. WILLS & ESTATE ADMINISTRATION-PROTECT YOUR FAMILY AND 
MAKE PLANNING EASY 
2. POWER OF ATTORNEY to permit family to pay your bills if you are temporarily disabled and permit doctors to talk with family 
       All instructors are licensed attorneys who have been in practice at least 25 years. All instructors are members of the American Bar Association, New Jersey 
State Bar Association, and Middlesex County Bar Association. All programs include free written materials. 

       You don't have to be wealthy or near death to do some thinking about a Will. Here is your opportunity to listen to an experienced attorney who will discuss how to distribute your property as you wish and avoid many rigid provisions of state law. 

      Topics discussed include: Who needs a Will?; What if you die without a Will (intestacy)?; Mechanics of a Will; "Living Will"; Powers of Attorney; Selecting an executor, trustee, and guardian; Proper Will execution; Inheritance Taxes, Estate Taxes $14,000 annual gift tax exclusion,  Bequests to charity, Why you need a "Self-Proving" Will and Estate Administration/ Probate.

       Sample materials: Hand-outs on Wills, Living Wills/Medical Advance Directive, Power of Attorney, Probate and Administration of an Estate, Real Estate, Working with your Attorney, Consumers Guide to New Jersey Laws, and Senior Citizen Rights. 

SPEAKERS BUREAU 

At the request of senior citizen groups, unions, and Middlesex County companies and organizations, the " Speakers Bureau " is a service designed to educate citizens about how laws affect their lives and how the judicial system operates. We have attorneys available to speak to businesspersons, educational, civic and social organizations on a wide range of topics during business hours. 

In today's complex world, few people can function successfully and safely without competent legal advice. In order to insure your estate plans are legally set up, you need to know exactly where you stand so that you can avoid possibly catastrophic mistakes impacting both you and your family. 

About the speaker: Kenneth A. Vercammen is a trial attorney in Edison, NJ. We is the author of the American Bar Association’s book “Wills and Estate Administration”
He is co-chair of the ABA Probate & Estate Planning Law Committee of the American Bar Association Solo Small Firm Division.  He is a speaker for the NJ State Bar Association at the annual Nuts & Bolts of Elder Law & Estate Administration program. 
He was Editor of the ABA Estate Planning Probate Committee Newsletter. Mr. Vercammen has published over 150 legal articles in national and New Jersey publications on litigation, elder law, probate and trial topics. He is a highly regarded lecturer on litigation and probate law for the American Bar Association, NJ ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published in noted publications included New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer. He established the NJlaws website www.njlaws.com which includes many articles on Estate Planning, Probate and Wills. He is a member of the AARP and often lectures to groups on the importance of an up to date Will, Power of Attorney and Living Will.
 KENNETH  VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
 (Fax)    732-572-0030
www.njlaws.com 
 
   Kenneth Vercammen is author of the  ABA’s new book “Wills and Estate Administration”
Straightforward and to-the-point, Wills and Estate Administration provides step-by-step guidance that firms can use to handle all aspects of an estates practice, from initial client intake to closing the file. Topics are defined in six parts for ease of use:
   Preparation for Wills/Estate Planning Interviews
   Interviewing Clients
   Additional Estate Planning Issues
   Estate Administration
   Guardianship of Disabled or Incompetent Parents
   Marketing Your Wills and Estate Administration Practice
     Making this an essential resource for solo and small firm practitioners, the author includes numerous forms for each topic, and they are also available for download online. The book is basic and written to help new and transitional attorneys. In addition, tips on practice management will help seasoned attorneys.

Author: Kenneth A Vercammen Edison, NJ
Sponsor: Solo, Small Firm and General Practice Division
Publisher: ABA Book Publishing
   List Price: $79.95
ABA Price: $69.95
ISBN: 978-1-63425-380-2
Product Code: 5150484
2015, 290 pages, 7 x 10, Paperback
http://shop.americanbar.org/eBus/Store/ProductDetails.aspx?productId=224827061
ABA Service Hotline 800-285-2221 312-988-5000
   Sample chapter available http://shop.americanbar.org

Sunday, December 13, 2020

KPMG employees get Free Wills for KPMG employees who choose Metlife Legal Plan

KPMG employees get Free Wills for  KPMG employees who choose Metlife Legal Plan 

Metlife members can obtain authorization numbers online at https://members.legalplans.com/Home

or call Metlife legal at 800.821.6400

 

The Law Office of Kenneth Vercammen serves as a NJ Access Attorney for Metlife Legal HYATT Plan. Vercammen Law can prepare Wills, Powers of Attorney and Living Wills for members. 

 Covered KPMGemployees are entitled to a free Will for them and spouse, Power of Attorney for husband & wife, Living Will husband & wife, Testamentary Trust for minor children.  There is also representation for certain Traffic Offenses in NJ.  Contact Metlife to obtain your case number.

 Why a Will is essential to persons with children or who own property

     If you leave no Will or your Will is declared invalid because it was improperly prepared or is not admissible to probate:

-The procedure to distribute assets becomes more complicated and costly

 -It may also cause fights and lawsuits within your family

-Additional expenses will be incurred and extra work will be required to qualify an administrator-Surety Bond, additional costs and legal fees

-Judge determines who gets custody of your children

-If you have no spouse or close relatives the State may take your property

     When loved ones are grieving and dealing with death, they shouldn’t be overwhelmed with financial concerns.  

 

Free Wills for Compuware employees who choose Metlife Legal Plan

 Free Wills for Compuware employees who choose Metlife Legal Plan 

Metlife members can obtain authorization numbers online at https://members.legalplans.com/Home

or call Metlife legal at 800.821.6400

 

The Law Office of Kenneth Vercammen serves as a NJ Access Attorney for Metlife Legal HYATT Plan. Vercammen Law can prepare Wills, Powers of Attorney and Living Wills for members. 

 Covered Compuwareemployees are entitled to a free Will for them and spouse, Power of Attorney for husband & wife, Living Will husband & wife, Testamentary Trust for minor children.  There is also representation for certain Traffic Offenses in NJ.  Contact Metlife to obtain your case number.

 Why a Will is essential to persons with children or who own property

     If you leave no Will or your Will is declared invalid because it was improperly prepared or is not admissible to probate:

-The procedure to distribute assets becomes more complicated and costly

 -It may also cause fights and lawsuits within your family

-Additional expenses will be incurred and extra work will be required to qualify an administrator-Surety Bond, additional costs and legal fees

-Judge determines who gets custody of your children

-If you have no spouse or close relatives the State may take your property

     When loved ones are grieving and dealing with death, they shouldn’t be overwhelmed with financial concerns.  

 

Free Wills for Bank of America employees who choose Metlife Legal Plan

 Free Wills for Bank of America employees who choose Metlife Legal Plan 

Metlife members can obtain authorization numbers online at https://members.legalplans.com/Home

or call Metlife legal at 800.821.6400

 

The Law Office of Kenneth Vercammen serves as a NJ Access Attorney for Metlife Legal HYATT Plan. Vercammen Law can prepare Wills, Powers of Attorney and Living Wills for members. 

 Covered Bank of Americaemployees are entitled to a free Will for them and spouse, Power of Attorney for husband & wife, Living Will husband & wife, Testamentary Trust for minor children. There is also representation for certain Traffic Offenses in NJ.  Contact Metlife to obtain your case number.

 Why a Will is essential to persons with children or who own property

     If you leave no Will or your Will is declared invalid because it was improperly prepared or is not admissible to probate:

-The procedure to distribute assets becomes more complicated and costly

 -It may also cause fights and lawsuits within your family

-Additional expenses will be incurred and extra work will be required to qualify an administrator-Surety Bond, additional costs and legal fees

-Judge determines who gets custody of your children

-If you have no spouse or close relatives the State may take your property

     When loved ones are grieving and dealing with death, they shouldn’t be overwhelmed with financial concerns.  

 

Metlife HYATT Legal Plan provides Free Wills and Power of Attorney available for American Express employees who select Metlife HYATT Legal Plan

 Metlife HYATT Legal Plan provides Free Wills and Power of Attorney available for American Express employees who select  Metlife HYATT Legal Plan

The Law Office of Kenneth Vercammen serves as a NJ Access Attorney for Metlife Legal HYATT Plan. Vercammen Law can prepare Wills, Powers of Attorney and Living Wills for members. 

  For covered American Expressemployees, they are entitled to a free Will for them and spouse, Power of Attorney for husband & wife, Living Will husband & wife, Testamentary Trust for minor children. There is also representation for certain Traffic Offenses in NJ.  Contact Metlife to obtain your case number.

 Why a Will is essential to persons with children or who own property

     If you leave no Will or your Will is declared invalid because it was improperly prepared or is not admissible to probate:

-The procedure to distribute assets becomes more complicated and costly

 -It may also cause fights and lawsuits within your family

-Additional expenses will be incurred and extra work will be required to qualify an administrator-Surety Bond, additional costs and legal fees

-Judge determines who gets custody of your children

-If you have no spouse or close relatives the State may take your property

     When loved ones are grieving and dealing with death, they shouldn’t be overwhelmed with financial concerns.  

Metlife HYATT members can obtain authorization numbers online at https://members.legalplans.com/Home

or call Metlife legal at 800.821.6400

Free Wills for FedEx employees who choose Metlife Legal Plan

 Free Wills for FedEx employees who choose Metlife Legal Plan 

Metlife members can obtain authorization numbers online at https://members.legalplans.com/Home

or call Metlife legal at 800.821.6400

 

The Law Office of Kenneth Vercammen serves as a NJ Access Attorney for Metlife Legal HYATT Plan. Vercammen Law can prepare Wills, Powers of Attorney and Living Wills for members. 

  Covered FedEx employees are entitled to a free Will for them and spouse, Power of Attorney for husband & wife, Living Will husband & wife, Testamentary Trust for minor children.  There is also representation for certain Traffic Offenses in NJ.  Contact Metlife to obtain your case number.

 Why a Will is essential to persons with children or who own property

     If you leave no Will or your Will is declared invalid because it was improperly prepared or is not admissible to probate:

-The procedure to distribute assets becomes more complicated and costly

 -It may also cause fights and lawsuits within your family

-Additional expenses will be incurred and extra work will be required to qualify an administrator-Surety Bond, additional costs and legal fees

-Judge determines who gets custody of your children

-If you have no spouse or close relatives the State may take your property

     When loved ones are grieving and dealing with death, they shouldn’t be overwhelmed with financial concerns.  

Free Wills for JPMorgan Chase employees who select Metlife Legal Plan

 Free Wills for JPMorgan Chase employees who select Metlife Legal Plan 

Metlife members can obtain authorization numbers online at https://members.legalplans.com/Home

or call Metlife legal at 800.821.6400

 

The Law Office of Kenneth Vercammen serves as a NJ Access Attorney for Metlife Legal HYATT Plan. Vercammen Law can prepare Wills, Powers of Attorney and Living Wills for members. 

  Covered J.P. MORGAN CHASEemployees are entitled to a free Will for them and spouse, Power of Attorney for husband & wife, Living Will husband & wife, Testamentary Trust for minor children.  There is also representation for certain Traffic Offenses in NJ.  Contact Metlife to obtain your case number.

 Why a Will is essential to persons with children or who own property

     If you leave no Will or your Will is declared invalid because it was improperly prepared or is not admissible to probate:

-The procedure to distribute assets becomes more complicated and costly

 -It may also cause fights and lawsuits within your family

-Additional expenses will be incurred and extra work will be required to qualify an administrator-Surety Bond, additional costs and legal fees

-Judge determines who gets custody of your children

-If you have no spouse or close relatives the State may take your property

     When loved ones are grieving and dealing with death, they shouldn’t be overwhelmed with financial concerns.  

Free Wills for JPMorgan Chase employees who choose Metlife Legal Plan

 Free Wills for JPMorgan Chase employees who choose Metlife Legal Plan 

Metlife members can obtain authorization numbers online at https://members.legalplans.com/Home

or call Metlife legal at 800.821.6400

 

The Law Office of Kenneth Vercammen serves as a NJ Access Attorney for Metlife Legal HYATT Plan. Vercammen Law can prepare Wills, Powers of Attorney and Living Wills for members. 

  Covered J.P. MORGAN CHASEemployees are entitled to a free Will for them and spouse, Power of Attorney for husband & wife, Living Will husband & wife, Testamentary Trust for minor children. There is also representation for certain Traffic Offenses in NJ.  Contact Metlife to obtain your case number.

 Why a Will is essential to persons with children or who own property

     If you leave no Will or your Will is declared invalid because it was improperly prepared or is not admissible to probate:

-The procedure to distribute assets becomes more complicated and costly

 -It may also cause fights and lawsuits within your family

-Additional expenses will be incurred and extra work will be required to qualify an administrator-Surety Bond, additional costs and legal fees

-Judge determines who gets custody of your children

-If you have no spouse or close relatives the State may take your property

     When loved ones are grieving and dealing with death, they shouldn’t be overwhelmed with financial concerns.  

Thursday, December 10, 2020

Gifts by incapacitated person ordered to be repaid here IN THE MATTER OF KATHLEEN M. HOURIHAN, An Incapacitated Person.


Gifts by incapacitated person ordered to be repaid here
IN THE MATTER OF
KATHLEEN M. HOURIHAN,
An Incapacitated Person.
____________________________

                 Argued October 3, 2019 – Decided August 27, 2020

                 Before Judges Fuentes, Mayer, and Enright.

                 On appeal from the Superior Court of New Jersey,
                 Chancery Division, Monmouth County, Docket No. P-
                 000322-18.

 SUPERIOR COURT OF NEW JERSEY

                                                      APPELLATE DIVISION
                                                      DOCKET NO. A-1289-18T4
unpublished
Respondents have not filed briefs. PER CURIAM In an order of judgment dated December 13, 2013, the Chancery Division, General Equity Part in the Monmouth County Vicinage declared Kathleen Hourihan an incapacitated person and appointed her nieces, plaintiff Marianne Phillips and her sister Kathleen Gunyan, as co-Guardians of her estate. At the time the court made this decision, Hourihan was seventy-nine years old and had been diagnosed with Alzheimer's, psychosis, depression, mood disorder, and coronary heart disease. She resided at an assisted-living facility; she never married and did not have any children. Hourihan's estate was valued at approximately $3,000,000, and her annual income exceeded her living expenses. Thus, the court ordered plaintiff and Gunyan each to post a surety bond in the amount of $3,000,000 as a condition of their guardianship. On May 2, 2014, the court amended the judgment and appointed plaintiff as sole Guardian due to Gunyan's inability to post the required $3,000,000 surety bond. On February 13, 2008, Hourihan executed a Last Will and Testament (Will) naming her nieces, plaintiff and Gunyan, and Elizabeth Daly, a sister-in- law of the nieces, residual heirs of her estate in equal parts. Plaintiff and Gunyan were designated co-executors of her estate. On September 18, 2018, plaintiff filed a verified complaint in the Monmouth County Chancery Division, General Equity Part seeking nunc pro tunc approval of monetary gifts she made from Hourihan's estate between 2015 and 2017 to the direct beneficiaries of the Will, including herself; Gunyan; and Daly, and other family members who were only considered contingent beneficiaries to the Will, including her husband, two A-1289-18T4 2 daughters, and son-in-law. The total amount gifted from the Will during this three-year period was $450,000. Plaintiff's complaint came before the court unopposed. After hearing oral argument and reviewing the record, the General Equity judge granted plaintiff's application in part and denied it in part. The judge held that pursuant to a power of attorney, which Hourihan executed before she was declared legally incapacitated, plaintiff was authorized to gift $14,000 per year to each of the individuals Hourihan identified as direct beneficiaries in her will. This amount is the maximum per person yearly tax-free monetary gift permitted by the Internal Revenue Service (IRS). The judge disallowed the gifts plaintiff made to individuals who were identified in the Will only as contingent beneficiaries. Those individuals who received gifts based on their status as contingent beneficiaries in Hourihan's Will were ordered to repay to the estate the entire amount of the gift. Those recipients who were identified in the Will as direct beneficiaries were ordered to repay the estate the amount of the gifts that exceeded the yearly maximum per person tax-free gift limit established by the IRS. The judge granted plaintiff's motion to stay the execution of her order requiring the repayment of the gifts pending the outcome of this appeal. A-1289-18T4 3 In this appeal, plaintiff argues the General Equity Part erred when it: (1) restricted her ability to make gifts only to those individuals expressly named as direct beneficiaries of Hourihan's Will; (2) limited the gifts to those entitled to receive it to the maximum tax-free gift amount per year established by the IRS; and (3) required repayment of any gifts made to the direct beneficiaries in excess of the $14,000 tax-free gift limit established by the IRS. We reject these arguments and affirm. I. Hourihan was eighty-four years old at the time plaintiff brought this matter before the General Equity Part. In June 2006, Hourihan signed a power of attorney appointing plaintiff as her Attorney-in-Fact. The power of attorney permitted plaintiff to make gifts to the "natural objects of [Hourihan's] bounty," so long as "the total gifts to any one individual in any one calendar year [do not] exceed the federal gift tax annual exclusion in effect at the time of such gift[.]" On February 13, 2008, Hourihan signed her Will and named Gunyan, plaintiff, and Daly as direct beneficiaries of her residual estate "in equal shares, share and share alike." If either of the named beneficiaries were to predecease Hourihan, the beneficiary's share would pass per stirpes to the beneficiary's heirs. A-1289-18T4 4 Hourihan's investment assets estate consisted of wealth management and checking accounts held in PNC and Wells Fargo Wealth Management Accounts. These assets amounted to approximately $3,000,000. In the three years at issue here, Hourihan's income substantially exceeded her living expenses. Her net income in 2015 exceeded expenses by $125,042; her income exceeded her expenses in 2016 by $85,587; and her income exceeded her expenses in 2017 by $124,072. On September 18, 2018, plaintiff submitted a sworn certification to the General Equity Part in support of her application for judicial approval of the gifts. The certification provides, in relevant part: For Estate Planning purposes, gifts were made for 2015-2017, in the amount of $150,000.00 in total, per year, with each of the beneficiaries of Kathleen's Estate receiving $50,000.00, net, per year, as follows: 2015 a) $50,000.00 to Marianne Phillips, by and through her designated donees b) $50,000.00 to Kathleen Gunyan c) $50,000.00 to Elizabeth Daly 2016 a) $50,000.00 to Marianne Phillips, by and through herself and her husband, Stephen Phillips b) $50,000.00 to Kathleen Gunyan c) $50,000.00 to Elizabeth Daly 2017 a) $50,000.00 to Marianne Phillips, by and through herself and her husband, Stephen Phillips A-1289-18T4 5 b) $50,000.00 to Kathleen Gunyan c) $50,000.00 to Elizabeth Daly These gifts totaled $450,000 over this three-year period. Plaintiff averred that before she engaged in this gifting campaign, she consulted with Hourihan's certified public accountant, attorney, and investment advisors. She specifically noted that she sought the advice of her own attorney who told her she "possessed the requisite authority to proceed to gift without court approval." She also emphasized that based on this legal guidance and having "previously been vested with the authority to gift . . . by my Aunt's Power of Attorney, my reliance upon this advice was reasonable under the circumstances." II. Whether a court appointed guardian may distribute gifts to a ward's intended beneficiaries is a question of law. Thus, we are not bound by the trial court's interpretation of the law and the legal consequences that flow from established facts. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). We review the General Equity Part's decision de novo. Johnson v. Roselle EZ Quick LLC, 226 N.J. 370, 386 (2016). The outcome of this appeal turns on the application of N.J.S.A. 3B:12-58, which provides: A-1289-18T4 6 [i]f the estate is ample to provide for the purposes implicit in the distributions authorized by this article, a guardian for the estate of an incapacitated person may apply to the court for authority to make gifts to charity and other objects as the ward might have been expected to make. Also included in this statutory scheme is N.J.S.A. 3B:12-50, which provides: [t]he court may exercise, or direct the exercise of, or release the powers of appointment of which the ward is donee, to renounce interests, to make gifts in trust or otherwise, or to change beneficiaries under insurance and annuity policies, only if satisfied, after notice and hearing, that it is in the best interests of the ward. The Supreme Court construed the application of these statutes in In re Keri, in which Chief Justice Poritz, writing for the Court, explained: [i]n short, when managing the estates of incompetent persons, including the exercise of the power to make gifts, our courts must find that the proposed action is in "the best interests of the ward," N.J.S.A. 3B:12-50, and that any gifts proposed are such "as the ward might have been expected to make," N.J.S.A. 3B:12-58. Together, those statutory provisions incorporate and reconcile the best interests standard with the common law equitable doctrine of substituted judgment. Only when the estate contains the resources necessary for the benefit of the ward (best interests), may the guardian make gifts "in the same manner as the incompetent would if able to function at full capacity" (substituted judgment). [ 181 N.J. 50, 57-58 (2004) (quoting In re Labis, 314 N.J. Super. 140, 146 (App. Div. 1998)).] A-1289-18T4 7 To determine whether the statutory mandates of N.J.S.A. 3B:12-50 and N.J.S.A. 3B:12-58 have been satisfied, our courts have applied the five-factor test, first articulated by then Chancery Division Judge Samuel Allcorn, Jr., 1 in In re Trott, 118 N.J. Super. 436, 442-44 (Ch. Div. 1972), and later adopted by our Supreme Court in Keri, 181 N.J. at 59. That test requires the guardian to consider the following five factors: (1) the mental and physical condition of the incompetent are such that the possibility of her restoration to competency is virtually nonexistent; (2) the assets of the estate of the incompetent remaining after the consummation of the proposed gifts are such that, in the light of her life expectancy and her present condition of health, they are more than adequate to meet all of her needs in the style and comfort in which she now is (and since the onset of her incompetency has been) maintained, giving due consideration to all normal contingencies; (3) the donees constitute the natural objects of the bounty of the incompetent by any standard . . . ; (4) the transfer will benefit and advantage the estate of the incompetent by a reduction of death taxes; (5) there is no substantial evidence that the incompetent, as a reasonably prudent person, would, if competent, not make the gifts proposed in order to effectuate a saving of death taxes. [Keri, 181 N.J. at 59 (alteration in original) (quoting Trott, 118 N.J. Super. at 442-44).] 1 Chief Justice Weintraub assigned Judge Allcorn to the Appellate Division in 1972. Judge Allcorn was Presiding Judge of the Appellate Division from 1977 until he retired in 1982. A-1289-18T4 8 In Keri, the petitioner sought guardianship of his mother and her estate and approval of his proposed Medicaid spend-down plan. Id. at 55. This estate planning technique transfers the assets of the incapacitated person so that she becomes eligible for Medicaid prior to exhausting all of her monetary resources. The petitioner's mother in Keri suffered from a form of irreversible dementia. Id. at 54. When the petitioner sought guardianship, his mother's net worth was $170,000, which was the approximate value of her home. Id. at 54-55. Her monthly nursing home expenses were $6,500, while her monthly income was $1,575.45. Id. at 55. Based on this negative disparity between assets and expenses, the petitioner determined his mother would need $4,924.55 per month to pay for the nursing home. Ibid. Taking into account the sixteen-month period of Medicaid ineligibility that would be triggered by the transfer, the petitioner concluded his mother would need approximately $78,000 to pay her nursing home bills and he proposed to transfer $46,000 to himself and his brother. Ibid.; see 42 U.S.C § 1396p(c); N.J.A.C. 10:71-4.10(a). Both the trial court and the Appellate Division rejected the petitioner's proposal. 181 N.J. at 56. The Supreme Court reversed. Id. at 69. Acknowledging the statutory scheme adopted by the Legislature in N.J.S.A. 3B:12-36 to -64, the Court held: A-1289-18T4 9 There is no reason why an individual, simply because he happens to be a ward, should be deprived of the privilege of making an intelligent commonsense decision in the area of estate planning, and in that way forced into favoring the taxing authorities over the best interests of his estate. [Id. at 58 (quoting Strange v. Powers, 358 Mass. 126, 133 (1970)).] The approach the Court approved in Keri applies with equal force here. The first Trott criterion is satisfied here because it is indisputable that Hourihan suffers from Alzheimer's and other neurological impediments which are irreversible. The second Trott criterion is likewise satisfied because the record shows Hourihan's assets are more than sufficient to maintain her accustomed and necessary level of care. The third Trott criterion requires that the gifts plaintiff made go to Hourihan's natural bounty. Keri, 181 N.J. at 59. Gunyan and Daly are named in Hourihan's Will, and they are her niece and niece-in-law, respectively. Black's Law Dictionary defines a natural object as "[a] person likely to receive a portion of another person's estate based on the nature and circumstances of their relationship." Black's Law Dictionary 1049 (7th ed. 1999). Thus, the gifts to Gunyan and Daly were to Hourihan's natural bounty. A-1289-18T4 10 However, as the General Equity judge correctly recognized here, the gifts plaintiff made to her daughters, her son-in-law, and her husband do not satisfy the third Trott criterion. A plain application of the legal definition of natural object makes clear that these individuals do not qualify as Hourihan's natural bounty because they would only receive a share of the estate if plaintiff predeceased them. The fourth Trott criterion is satisfied because the gifts will reduce the payment of estate taxes upon Hourihan's death. The transfers will save $72,000, provided Hourihan survives the three-year look back period. N.J.S.A. 54:34-1. The fifth Trott criterion is also satisfied because there is no substantial evidence that Hourihan would rather have her assets go to the government in the form of taxes than her heirs. Indeed, there is a presumption that a reasonable person would rather leave money to her heirs, than to see it go to the government. Keri, 181 N.J. at 63. Finally, in our view, the General Equity judge correctly relied on Hourihan's power of attorney to limit plaintiff's gifts to $14,000. Affirmed.

Thursday, December 3, 2020

Medicaid and court reject certain payments to caregivers without proof of level of care NJ

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Medicaid and court reject certain payments to caregivers without proof of level of care D.Z. v. Ocean County Bd. of Soc. Serv. Petitioner appealed the decision imposing a penalty for assets she transferred during the look-back period. | Petitioner appealed the decision finding her eligible for Medicaid benefits but imposing a penalty for assets she transferred during the look-back period. Petitioner requested a fair hearing as to the penalty. At the hearing, son and power of attorney testified petitioner hired three health care aides to assist her at home in the years before she was transferred to a nursing facility. The aides assisted petitioner with dressing, ambulating, bathing, cooking and cleaning in rotating shifts. One aide lived with petitioner full time for several months. Son testified his attempt to secure testimony from the aides was futile. ALJ found petitioner paid three aides for home health care, those payments were not subject to the look-back penalty and modified the amount of the penalty. Agency director adopted ALJ's decision in part and reversed it in part. Director found petitioner did not establish the type of services provided to her, the amount she paid for the services and the prevailing rates in the community for similar services. Court found agency's decision was supported by substantial credible evidence. There was no evidence the rate petitioner paid was warranted by the aides' skill level and training, the evidence was imprecise as to the amount paid and agency could not determine the fair market value of the services petitioner received source . https://www.law.com/njlawjournal/almID/1592939409NJA596217T

No evidence of lack of capacity for Will or undue influence NJ

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No evidence of lack of capacity for Will or undue influence In the Matter of the Estate of Willson Plaintiff appealed from the grant of summary judgment in favor of defendant and the denial of plaintiff's motion for partial summary judgment. Defendant was decedent's second wife, while plaintiff was decedent's daughter with his first wife. Two years after decedent and defendant married, decedent executed a will dividing his residuary estate between plaintiff and defendant; in addition, plaintiff was given a $100,000 bequest. Thereafter, decedent made several revisions to his Will that kept the equal distribution of the residuary estate but eliminated the $100,000 bequest to plaintiff. In each of the revised wills, defendant was named co-executor alongside decedent's attorney. In the years leading up to his death, decedent executed a will giving his residuary estate entirely to plaintiff and naming her sole executor; however, decedent soon after changed his will to name defendant as the sole executor and beneficiary. Thereafter, decedent's health began to decline, although his physician found that decedent was oriented to time, place, person and situation. Decedent contacted his attorney and requested that plaintiff's inheritance be limited to $200,000. Decedent executed a new will and a memorandum explaining his decision to limit plaintiff's inheritance. Following decedent's death, plaintiff filed a caveat to decedent's will along with a counterclaim alleging decedent lacked testamentary capacity to change his wills and beneficiary designations. Defendant moved for summary judgment while plaintiff cross-moved for partial summary judgment seeking a presumption of undue influence. The trial court granted judgment to defendant, concluding that plaintiff's claim of decedent's lack of testamentary capacity was based on speculation. Instead, the trial court found that the evidence supported finding decedent possessed testamentary capacity at the time he executed the revised will. The trial court also found no evidence of undue influence. On appeal, the court affirmed the grant of summary judgment to defendant for the reasons expressed by the trial court. source https://www.law.com/njlawjournal/almID/1593537987NJA535018T/

What to do immediately after death NJ

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What to Do When a Loved One Dies Call 911 right away if there is an unexpected death in your home. The medical team will help you figure out the next steps. If the deceased was receiving hospice care, call the hospice. -If a death is expected to happen soon, call your doctor or your hospice to discuss what to do when or if a death happens in your home. -Most deaths occur in hospitals and other places such as nursing homes. Talk to the staff about their process. https://www.legalvoice.org/after-death-occurs-checklist To Do Immediately After Someone Dies Get a legal pronouncement of death If your loved one died in a hospital or nursing home where a doctor was present, the staff will handle this. An official declaration of death is the first step to getting a death certificate, a critical piece of paperwork. But if your relative died at home, especially if it was unexpected, you'll need to get a medical professional to declare her dead. To do this, call 911 soon after she passes and have her transported to an emergency room where she can be declared dead and moved to a funeral home. If your family member died at home under hospice care, a hospice nurse can declare him dead. Without a declaration of death, you can't plan a funeral much less handle the deceased's legal affairs. Tell friends and family Send out a group text or mass email, or make individual phone calls to let people know their loved one has died. To track down all those who need to know, go through the deceased's email and phone contacts. Inform coworkers and the members of any social groups or church the person belonged to. Ask the recipients to spread the word by notifying others connected to the deceased. Put a post about the death on social media. Find out about existing funeral and burial plans "Ideally, you had the opportunity to talk with your loved one about his or her wishes for funeral or burial,” writes Sally Balch , an elder law attorney and author of Checklist for Family Survivors. If you didn't, she advises you look for a letter of instruction in the deceased's papers or call a family meeting to have the first conversation about what the funeral will look like. This is critical if he left no instructions. You need to discuss what the person wanted in terms of a funeral, what you can afford and what the family wants. Within a Few Days of Death Make funeral, burial or cremation arrangements • Search the paperwork to find out if there was a prepaid burial plan. If not, you'll need to choose a funeral home and decide on specifics like where the service will be held, whether to cremate, where the body or ashes will be interred and what type of tombstone or urn to order. It's a good idea to research funeral prices to help you make informed decisions. • If the person was in the military or belonged to a fraternal or religious group, contact the Veterans Administration or the specific organization to see if it offers burial benefits or conducts funeral services. • Get help with the funeral. Line up relatives and friends to be pallbearers, to eulogize, to plan the service, to keep a list of well-wishers, to write thank-you notes and to arrange the post-funeral gathering. • Get a friend or relative who is a wordsmith to write an obituary. Secure the property Lock up the deceased's home and vehicle. Ask a friend or relative to water the plants, get the mail and throw out the food in the refrigerator. If there are valuables, such as jewelry or cash, in the home, lock them up. “You have to watch out for valuable personal effects walking out,” Harbison says. Provide care for pets Make sure pets have caretakers until there's a permanent plan for them. Send them to stay with a relative who likes animals or board them at a kennel. Forward ma l Go to the post office and put in a forwarding order to send the mail to yourself or whoever is working with you to see to the immediate affairs. You don't want mail piling up at the deceased's home, telegraphing to the world that the property is empty. This is also the first step in finding out what subscriptions, creditors and other accounts will need to be canceled or paid. source AARP, Ken Vercammen has been an AARP member since 2013 source https://www.aarp.org/home-family/friends-family/info-2020/when-loved-one-dies-checklist.html?request_locale=en&transId=Login-2f49e41c-11e9-4934-ba37-ef720325eabe&cmp=EMC-DSM-TRG-OTH--PasswordResetTransactional_CTRL_294800_366401--Body1-RESETPASSWORD-CTA_Button-CTRL-4503718&encparam=CimwQdmT2vfoXFIpQ/QnmQ==&intcmp=DSO-HDR-LOGIN