Information on Ejectment Actions to remove occupants

           Information on Ejectment Actions to remove occupants

Ejectment is a legal action brought by a plaintiff under N.J.S.A. 2A:35-1 and R. 4:59-2, claiming a right to possess real property against a defendant who currently possesses the property.           

In New Jersey, the common law action of ejectment was replaced by N.J.S.A. 2A:35-1, which states, “Any person claiming the right of possession of real property in the possession of another or claiming title to such real property, shall be entitled to have his rights determined in an action in the Superior Court.” It differs from a summary dispossess action under N.J.S.A. 2A:18-53 which permits the removal of tenants or lessees under certain circumstances (e.g., holdover tenants, defaults in rent, and certain violations of the leasing agreement), but does not involve claims to title of the property. Ejectment actions typically should be brought in the Law Division. 

http://www.judiciary.state.nj.us/civil/practitioners_guide.pdf

However, if the persons residing in the house are family members and there is a probate case, we can file in Probate Division.

 

Sometimes the parent passes away, and an adult child living in the house will not move out. We file an Ejectment Action and seek a court order

  We would ask the court for the following:

WHEREFORE, plaintiff Executor demands the following:

         

             1.      The house located at __________ shall immediately be listed for sale and D1 the occupant shall cooperate in the sale.

             

             2.      D1 and all other occupants shall immediately vacate or pay a monthly rent of $2,000 per month, plus utilities and roof expenses and amounts.

         

         3. D1 the occupant be required to pay the mortgage amounts since the date of death in amount of __ as of ___and all mortgage amounts after that date.

         

2.   D1 the occupant pay property taxes of _$ _ as of _  and all property taxes after that date.

 

3.   d1pay overdue electric bill of $__ as of __ and all electric bills after that date.

 

4.   D1 the occupant pay water/sewer bill of __as of __and all water/sewer bills after that date.

 

5.   D1 the occupant  pay gas bill of $  as of __ and all gas bills after that date.

 

         8. D1 THE OCCUPANT  be required to pay attorney’s fees and costs of this action, which are $5,000 as of 7/2/11, and hourly rate of $325 per hour.

          

         9. Money owed by D1 the occupant  __ shall be deducted from their share of estate after sale of land.

         

         10. Plaintiff will be granted further relief as the court will deem just and equitable.

 

The Court will typically give them time to move out.

Executor duties

 Executor duties  

         It is our recommendation that Executors undertake the following measures:

 

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

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

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

         4.  Contact all parties who provided medical care, treatment, or assistance to the decedent prior to his/her death; and pay undisputed bills after submitted to insurance company

 

Other upcoming duties/ Executor to Do

 

Notice of Probate to Beneficiaries  (Attorney will handle)

If charity, notice to Atty General

 

File notice of Probate with Surrogate (Attorney will handle)

 

Apply to Federal Tax ID  if there will be several beneficiaries- Either Executor or Attorney can handle

 

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

 

Type up list of all assets and all liabilities

Email list to beneficiaries if applicable

 

Pay Bills  

         List real estate for sale and have attorney prepare, Deed, Affidavit of title and other document

 

-If mortgage, contact mortgage company for payoff

 

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

 

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

 

Sell applicable assets

 

If house, select realtor to sell house “as is”

 

File NJ Tax waivers on real property with County Clerk (Attorney will handle)

 

Prepare Informal Accounting after assets sold

 

Prepare Release and Refunding Bond for all beneficiaries to sign (Attorney will handle)

   

Obtain Child Support Judgment clearance (Attorney will handle if needed)

 

File Release and Refunding Bond with Surrogate after all beneficiaries sign.

 

         Let's review the major duties involved, which we've set out below.

 

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). Let's take a look at some of the specific steps involved and what these responsibilities can mean. Chronological order of the various duties may vary.

 

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

 

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

 

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

 

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

 

  Take Care of Tax Matters. The executor is legally responsible for filing necessary income and estate-tax returns (federal and state) and for paying all death taxes (i.e., estate and inheritance). The executor can, in some cases be held personally liable for unpaid taxes of the estate. Tax returns that will need to be filed can include the estate's income tax return (both federal and state), and the deceased's final income tax return (federal and state). Taxes usually must be paid before other debts. In most 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.

 

       Child Support Lien Search Request.  Prior to individuals receiving money Federal law requires a child support lien search so each beneficiary will need to provide their Social Security number prior to inheritance. Your attorney can handle this, upon request. If child support is owed, and not deducted from the person's inheritance, the executor can be personally liable. Each beneficiary must sign a "Release and Refunding Bond" to distribute the assets. Otherwise, formal Court approval is required to finalize the estate to distribute the assets. After all debts and expenses have been paid, the executor will distribute the assets. Frequently, beneficiaries can receive partial distributions of their inheritance without having to wait for the closing of the estate, provided they sign a Partial Release & Refunding Bond.

 

Wrongful death claim dismissed where no timely application for administration Chandler v. Kasper

 Wrongful death claim dismissed where no timely application for administration Chandler v. Kasper

Defendants appealed orders denying their motion for summary judgment and allowing plaintiff to amend her complaint to correct her standing in plaintiff's wrongful death and Survivor's Act action. Decedent was hit by an automobile driven by one defendant and owned by other defendant in December 2016. Decedent died six days later. Plaintiff, decedent's daughter, filed a complaint as Administrator Ad Prosequendum just prior to the running of the statute of limitations in December 2018. The complaint alleged decedent died intestate and that plaintiff had been appointed as Administrator. The complaint asserted claims under the Survivor's Act and a wrongful death claim. Defendants argued plaintiff's claims were statutorily barred by the wrongful death and Survivors' Act statutes. Defendants filed for summary judgment in 2020 asserting plaintiff lacked standing to bring the Survivor's Act claim because letters of general administration had never been issued to her. Plaintiff filed a second amended complaint to reflect that she obtained letters of general administration in December 2020. Motion judge denied defendants' motion on the grounds of equity and noted defendants participated in arbitration and discovery for years without raising the issue. Court reversed and found the filling of the complaint prior to the establishment of the estate was a "nullity" and the Survivor's Act count had to be dismissed.

 https://www.law.com/njlawjournal/almID/1633635527NJA214320/

 

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION 

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. 

DAMARIS CHANDLER,
as administrator ad prosequendum of the estate of JOSEPH E. CHANDLER, JR., deceased, 

Plaintiff-Respondent, v. 

TODD W. KASPER, Defendant-Appellant, 

and
THOMAS C. KASPER, 

Defendant, and 

KAZZ, INC., d/b/a KASPER'S CORNER and KASPER AUTOMOTIVE, 

Defendants-Respondents. _____________________________ 

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO. A-2143-20 

Argued September 13, 2021 – Decided October 7, 2021 

Before Judges Sabatino and Rothstadt. 

On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-4710-18. 

Neal A. Thakkar argued the cause for appellant (Sweeney & Sheehan, PC, attorneys; Frank Gattuso and Jacqueline M. DiColo, on the briefs). 

Robert Douglas Kuttner argued the cause for respondent Damaris Chandler. 

Mark R. Sander argued the cause for respondent Kazz, Inc. (Thomas, Thomas & Hafer, LLP, attorneys; Mark R. Sander, of counsel and on the brief). 

PER CURIAM
In this wrongful death, N.J.S.A. 2A:31-1 to -6, and Survivor's Act, 

N.J.S.A. 2A:15-3, action, we granted defendants Todd W. Kasper, Kazz, Inc. d/b/a Kasper's Corner, and Kasper Automotive, leave to appeal from two January 22, 2021 orders entered by the Law Division, denying defendants' motion for partial summary judgment, and permitting plaintiff to amend her previously filed complaint to correct her standing by designating herself both as Administrator Ad Prosequendum and the General Administrator of her deceased father's estate. According to defendants' arguments before the motion judge and now on appeal, plaintiff could not have standing to bring the Survivor's Act 

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action because no estate existed at the time she filed her complaint. And, by the time letters of administration were issued to plaintiff and she sought to amend her complaint, the statute of limitations for the Survivor's Act action ran years before. The motion judge acknowledged the deficiency in plaintiff's initial standing but still denied defendants' motion to dismiss as a matter of equity. We reverse that determination and remand for entry of orders dismissing plaintiff's Survivor's Act action for lack of standing because plaintiff's original complaint was a nullity and any amendment sought after the statute of limitations ran could not relate back to that complaint. 

The undisputed facts giving rise to the complaint in this action are taken from the motion record and summarized as follows. The decedent, Joseph E. Chandler, was struck by an automobile while crossing a street on December 21, 2016. The vehicle that struck the decedent was driven by defendant Todd W. Kasper and owned by defendant Thomas C. Kasper. As a result of being struck by that vehicle, the decedent suffered significant injuries and passed away six days later. 

Just prior to the statute of limitations running as to the decedent's and his heirs' claims, on December 18, 2018, the decedent's daughter, plaintiff Damaris Chandler, filed a two-count complaint as Administrator Ad Prosequendum of 

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her father's estate. The complaint alleged that the decedent died on December 27, 2016, intestate and that plaintiff had been appointed as Administrator Ad Prosequendum prior to the filing of the complaint. The first count asserted a claim under the Survivor's Act for the personal injuries and pain and suffering the decedent experienced prior to his death. The second count asserted a wrongful death action, which claimed that the decedent's daughters, plaintiff and India Ruhlman, his son Kerri Chandler, and his other "survivors and next of kin" were entitled to damages. In response, defendants filed answers to the complaint. Defendants Todd and Thomas Kasper's answer asserted as a separate defense that plaintiff's claims were statutorily barred by both the wrongful death statute and by the Survivor's Act. Thereafter the parties engaged in discovery. At no time prior to the filing of the subject summary judgment motions did defendants otherwise assert that plaintiff lacked standing to bring the Survivor's Act action. 

Thereafter, in November 2020, defendants filed a motion for summary judgment seeking dismissal of the Survivor's Act action because plaintiff lacked standing to bring that claim as letters of general administration had never been issued to her. Plaintiff filed opposition to the motion and a cross-motion to file 

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a second amendment complaint to reflect that on December 8, 2020, plaintiff obtained letters of general administration. 

In a certification filed in support of her cross-motion and in opposition to defendants' motion, plaintiff explained that there was a delay in her being able to seek appointment as both Administrator Ad Prosequendum and as General Administrator of her father's estate due to disagreements between her and her siblings. Moreover, she understood from discussions with representatives of the county surrogate's office that because there were no assets in the estate, it was only necessary for her to be appointed as Administrator Ad Prosequendum to file the lawsuit and later be appointed as General Administrator to distribute any recovery. According to plaintiff, only when the estate had assets would she need to be appointed as general administrator, which she began to pursue only when defendants "made a small offer in mediation" to settle this case in August 2020. However, it took additional time to persuade her siblings to agree to her appointment. 

After further submissions, the motion judge considered the parties' oral arguments on January 22, 2021. Afterward, the motion judge denied defendants' motion and granted plaintiff's cross-motion, placing his reasons on the record that same day. In his oral decision, the motion judge discussed the case law 

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relied on by the parties and raised by the judge, before concluding that plaintiff acted diligently and "provided [defendants] timely notice of the [Survivor's Act] claim by the initial complaint and . . . perhaps there's a defect in the standing of . . . plaintiff, but [she] was seeking to proceed diligently. [And,] New Jersey Law holds that it would be inequitable to deny [a] party their day in court because of ignorance." 

The judge also determined that "[a] deceased party['s] claim[] can only proceed through either [A]dministration [A]d [Proseqeundum] or through an estate being raised." He stated that defendants' argument as to standing was at best a "technical argument" and that "[s]tatute of limitations defenses are not permitted where mechanical application would inflict an obvious and unnecessary harm on . . . the party who holds the claim without advancing the 

legitimate purpose." And, according to the judge "[t]o deny a relation back . . . serves no legitimate purpose." The judge also relied on the fact that the parties participated in an arbitration and in discovery for years without defendants raising any issues as to standing. However, the judge found that "because standing's a threshold issue [that is] very similar to jurisdiction, it cannot be waived." Nevertheless, a defect in standing did not "mandate [] . . . the sanction of dismissal." 

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The judge also found support in the fact that plaintiff had difficulty in pursuing the issuance of letters of general administration because of disagreements between her and her siblings. He found that the siblings only agreed to renounce their rights to being named Administrator Ad Prosequendum immediately before the filing of the complaint, but "they wouldn't permit full representation of the estate by [plaintiff.]" Moreover, plaintiff relied on information she received from the surrogate's office that seemed to indicate that she could initially pursue the action as Administrator Ad Prosequendum and later could seek letters of administration that would allow for distribution of any funds that may be recovered in the action. It was not until December of 2020 that plaintiff's siblings renounced and allowed her to proceed to seek letters of administration. Therefore, the judge concluded that he should "permit the cure of the standing issue" by allowing the amendment of the complaint to relate back to remedy any issue as to standing. This appeal followed. 

On appeal, defendants challenged the judge's legal conclusion that despite the running of the statute of limitations plaintiff should be allowed to amend the complaint to relate back to its initial filing. "Because the question presented, whether decedent's estate could avoid the running of the statute of limitations by having its amended complaint relate back to the complaint filed in [plaintiff's] 

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name [as Administrator Ad Prosequendum years after the running of the statute of limitations] is solely a question of law, our review is de novo." Repko v. Our Lady of Lourdes Med. Ctr. Inc., 464 N.J. Super. 570, 574 (App. Div. 2020). 

In Repko, the plaintiff's attorney had filed a complaint in the name of his deceased client without knowing she was dead. When he learned of her passing, he sought to amend the complaint to substitute the client's estate and to add a claim under the Survivor's Act, but did so three years after the cause of action arose and after the statute of limitations had run. In our opinion, we reversed the denial of defendant's motion to dismiss the complaint as barred by the statute of limitations and remanded for the entry of an order dismissing the complaint with prejudice. Id. at 578. There, we observed that the original complaint was a "nullity" because a deceased person cannot be a plaintiff. Id. at 575. We concluded there was nothing for an amendment of the complaint to relate back to, which warranted dismissal of the Survivor's Act claim. Id. at 573. 

In the present action, the motion judge and plaintiff on appeal rejected defendants' argument that our holding in Repko was applicable to this case. We disagree. 

At the outset, we note the important distinction between a wrongful death action and a Survivor's Act action; the former belonging to the individual 

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survivors of the decedent and the later belonging only to the decedent's estate. "[T]he Survivor's Act preserves to the decedent's estate any personal cause of action that decedent would have had if he or she would have survived." Smith v. Whitaker, 160 N.J. 221, 233 (1999). The Survivor's Act permits only an "executor, suing on behalf of [an] estate, to recover the damages [the] testator would have had if [the testator] was living." Repko, 464 N.J. Super. at 577 (quoting Smith, 160 N.J. at 233). On the other hand, a wrongful death action must "be brought in the name of an [A]dministrator [A]d [P]rosequendum of the decedent for whose death damages are sought," or by an executor where the decedent's will has been probated, N.J.S.A. 2A:31-2, and any recovery belongs to the decedent's heirs. See N.J.S.A. 2A:31-4. 

As explained by Judge Milton A. Feller many years ago in Kern v. Kogan, 93 N.J. Super. 459 (Law Div. 1967), there is a significant difference between the two actions: 

The death statute gives to the personal representatives a cause of action beyond that which the deceased would have had if he had survived, and based upon a different principle, a new right of action. The recovery goes, not to the estate of the deceased person, but to certain designated persons or next of kin. In the recovery the executor or administrator as such has no interest; the fund is not liable to the debts of the deceased, nor is it subject to disposition by will, for the reason that the primary concern of the [A]ct . . . is to provide for those 

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who may have been the dependents of the deceased. . . . 

[The Survivor's Act] contemplates compensation to the deceased person's estate. It is in the interval between injury and death only that loss can accrue to the estate, and in that alone is the personal representative interested. . . . The damages for personal injury and the expense of care, nursing, medical attendance, hospital and other proper charges incident to an injury as well as the loss of earnings in the life of the deceased are the loss to his estate and not to [his widow or next of kin]. 

[Id. at 471-72 (citation omitted).]
"Under these acts, the [A]dministrator Ad [P]rosequendum is the proper 

party to bring a lawful death action and a [G]eneral [A]dministrator is the proper party to institute a survival action." Id. at 473. 

Notably the Survivor's Act includes a provision "to toll any statute of limitations on a claim belonging to a decedent for up to six months following death for the 'salutary purpose of providing executors and administrators with a limited period of time after death to evaluate potential claims available to the estate.'" Repko, 464 N.J. Super. at 577 (quoting Warren v. Muenzen, 448 N.J. Super. 52, 67-68 (App. Div. 2016) (citing N.J.S.A. 2A:14-23.1)). 

Applying these well settled principals to the facts in the matter before us, we must reverse the motion judge's determination that the complaint in this matter could have been amended to correct what was obviously plaintiff's lack 

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of standing to bring the Survivor's Action in her capacity as Administrator Ad Prosequendum. Her reasons for not pursuing letters of general administration are of no moment. Like the complaint filed on behalf of the deceased plaintiff in Repko, here, the filing of the complaint prior to the establishment of an estate was a "nullity." Id. at 573. Any delay caused by a dispute among the heirs or siblings could have been avoided with the filing of an appropriate probate action long before the statute of limitations expired for the filing of the Survivor's Act claim, which as noted provides for a tolling of that time period to allow for such arrangements to be made or issues to be addressed. 

As we noted in Repko, the "issue . . . of standing [is] succinctly defined . . . as 'the legal right to set judicial machinery in motion,'" id. at 574 (quoting Eder Bros. v. Wine Merchs. of Conn., Inc., 880 A.2d 138, 143 (Conn. 2005)). Here, plaintiff did not have that legal right as to the Survivor's Act action at the time the complaint was filed and did not acquire it until after the statute of limitations had run on the estate's claim under that act. Regardless of the fact that defendants had notice of the claim through service of the original complaint, that pleading remained a nullity and could not have been asserted once the statute of limitations had run. Although we appreciate the motion 

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judge's endeavor to attain an equitable result, the governing law simply does not authorize it. 

Reversed and remanded for entry of an order dismissing the Survivor's Act action count of the complaint. 

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

 If You Have No Will:

Compiled By Kenneth Vercammen, Esq. If you leave no Will or your Will is declared invalid because a cheap online form was used or it was improperly prepared or is not admissible to probate: 1. The procedure to distribute assets becomes more complicated. It will require all of the children to select someone to be the Administrator, then all the children to sign a Renunciation Affidavit in front of a notary. If all the children do not sign the Renunciation Affidavit, then a Complaint and Order with have to be filed in the Superior Court. Cost over $3,000 2. Additional expenses will be incurred and extra work will be required to qualify an administrator-Surety Bond, additional costs and legal fees 3. State law determines who gets assets, not you. People who dislike you or don’t care about you can get your assets 4. Advise your children a Judge determines who gets custody of grand children 5. You lose the opportunity to reduce State inheritance taxes and Federal estate taxes without improper planning * If you have no spouse or close relatives the State may take your property * It may also cause fights and lawsuits within your family When loved ones are grieving and dealing with death, they shouldn’t be overwhelmed with Financial concerns and estate problems if there is no Will or not prepared or signed properly. Who don’t you want to receive your assets? Who is not the best choice to raise your children, or safeguard your children's money for college? Do you want children, or grandchildren, to get money when they turn 18? Will they invest money wisely, or go to Seaside and play games? Beware of online documents not prepared by an attorney. Never use a form on line. No one tries to do their own electrical work on their home anymore or change their own oil. Have a professional do it right. Make sure it is a Self-proving Will and says no bond required. THE FOLLOWING IS A SAMPLE OF A VARIETY OF CLAUSES AND ITEMS WHICH SHOULD BE INCLUDED IN A WILL: 1ST: DEBTS AND TAXES 2ND: SPECIFIC BEQUESTS 3RD: DISPOSITION TO SPOUSE 4TH: DISPOSITION OF REMAINDER OF ESTATE 5TH: CREATION OF TRUSTS FOR SPOUSE 6TH: CREATION OF TRUST FOR CHILDREN 7TH: OTHER BENEFICIARIES UNDER 21 8TH: EXECUTORS 9TH: TRUSTEES 10TH: GUARDIANS 11TH: SURETY OR BOND 12TH: POWERS 13TH: AFTERBORN CHILDREN 14TH: PRINCIPAL AND INCOME 15TH: NO ASSIGNMENT OF BEQUESTS 16TH: GENDER 17TH: CONSTRUCTION OF WILL 18TH: NO CONTEST CLAUSE A will must not only be prepared within the legal requirements of the New Jersey Statutes but should also be prepared so it leaves no questions regarding your intentions. WHY PERIODIC REVIEW IS ESSENTIAL Even if you have an existing Will, there are many events that occur which may necessitate changes in your Will. Some of these are: * Marriage, death, birth, divorce or separation affecting either you or anyone named in your Will * Significant changes in the value of your total assets or in any particular assets, which you own * A change in your domicile * Death or incapacity of a beneficiary, or death, incapacity or change in residence of a named executor, trustee or guardian of infants, or of one of the witnesses to the execution of the Will * Annual changes in tax law * Changes in who you like MAY I CHANGE MY WILL? Yes. A Will may be modified, added to, or entirely changed at any time before your death provided you are mentally and physically competent and desire to change your Will. You should consider revising your Will whenever there are changes in the size of your estate. For example, when your children are young, you may think it best to have a trust for them so they do not come into absolute ownership of property until they are mature. Beware, if you draw lines through items, erase or write over, or add notations to the original Will, it can be destroyed as a legal document. Either a new Will should be legally prepared or a codicil signed to legally change portions of the Will. Kenneth Vercammen's Law office represents individuals charged with criminal, drug offenses, and serious traffic violations throughout New Jersey. Our office also helps people with traffic/municipal court tickets including drivers charged with Driving While Intoxicated, Refusal and Driving While Suspended. Call the Law Office of Kenneth Vercammen at 732-572-0500 to schedule a free in-office consultation to hire a trial attorney. Kenneth Vercammen & Associates Attorney at Law 2053 Woodbridge Ave Edison, NJ 08817 www.njlaws.com Criminal/ DWI/ Municipal Court Traffic/ Drug offenses

Trusts to avoid probate

               Trusts to avoid probate

 

        Compiled by Kenneth Vercammen

 

Irrevocable Trust:

        A Trust, which cannot be changed or canceled once, it is set up without the consent of the beneficiary. Contributions cannot be taken out of the trust by the grantor. Irrevocable trusts offer tax advantages that revocable trusts don't, for example by enabling a person to give money and assets away even before he/she dies. Opposite of revocable trust.

 

        Probate is defined as the procedure by which an Executor proceeds to admit a Will to the jurisdiction of the Surrogate Court, which is proved to be valid or invalid. The term generally includes all matters relating to the administration of estates.  There are instances where Surrogate Court monitoring of the estate is desirable.  Much has been written about the disadvantages of probate.  Following are just a few of the problems associated with probate and why certain people set up Trusts in addition to Wills.

 

Lack Of Privacy with Wills

        Documents filed with the Surrogate Court are public information.  They are available for inspection to anyone who asks. In large estates, which may require an accounting, your probate file will contain a complete list of all assets devised by your Will including business assets.  This lack of privacy may lead to problems among family members who now know the plan of distribution and may then contest any provisions with which they disagree.  Disinherited relatives and creditors are notified and given time by the Court to contest the Will distribution.  

 

Time Consuming

        The probate of an estate may take several months to several years to complete.  During that time family members may have to apply to the Surrogate Court for an allowance.

 

Fragmentation - Real Estate

        If you own real property in more than one state, probate rules must be followed in each state in which real property is located. The cost and time may be increased.

 

        Revocable Living Trust & Irrevocable Trusts

        

        A Revocable Living Trust is a legal device that allows you to maintain complete control over your assets and avoids Probate.  However, a Revocable Trust does not reduce Estate Tax and does not protect your assets from nursing home fees.

        Because there is no probate of a Revocable Living Trust, your private financial matters remain private, there are no probate costs, no long delays and loss of control, and no fragmentation of the estate. However, since you still control the trust, it cannot shield assets from Nursing Home, Medicaid or Estate Taxes. To do that, you will need to hire an attorney to prepare an Irrevocable Trust. Fees are minimum $3,000- $5,000 for trusts.

 

        A Revocable Living Trust can be structured to automatically create separate Trusts upon the death of your spouse.  Here's how it works.  If the wife dies first, the husband has total control of his Trust. Also, for the remainder of his life, he receives all income from her Trust and has the use of the assets whenever needed for living expenses.  When he dies, each Trust will claim its tax exemption, and some will go tax-free to their children, or any other beneficiary they designate, without having to go through probate. 

https://www.njlaws.com/trusts-and-wills.html

 

https://www.njlaws.com/free_special_report_will.html

 

You Maintain Complete Control Over Your Property In a Revocable Living Trust 

        The principle behind a Revocable Living Trust is simple.  When you establish a Living Trust, you transfer all your property into the Trust, and then name yourself as trustee, or you can name you and your spouse as co-trustees of the Trust.  The trustees maintain complete control over the property, the same control you had before your property was placed in trust You can buy, sell, borrow, pledge, or collateralize the trust property.  You can even discontinue the Trust if you choose.  That is why it is called a "Revocable" Living Trust. We will explain the "Irrevocable Trust" at the end of the article.

 

Transferring Property Into the Trust

        The transfer of title to property into the Trust is a relatively simple matter when you hire an attorney. Anywhere you have assets, you will get help in transferring your property into the Trust.  Your attorney, securities investor, etc., will provide you with assistance needed to transfer your property into your Revocable Living Trust.  Your attorney will provide the information and assistance you need to properly fund your Trust.

 

Complete Privacy  

        Probate records are public; your Trust documents are private.  A Trust will safeguard the privacy of your family and your private financial matters.

 

Naming A Trustee

        Most people name themselves and their spouse as the initial Trustees of a Revocable Trust. This is usually true unless one spouse is incapacitated to the point that he or she is not able to manage your assets in the same way you do now. However, for an Irrevocable or Medicaid trust, the spouse cannot be the trustee.

 

Gifts To Religious And Charitable Organizations

        Many people wish to give a portion or sometimes all of their assets to a religious or charitable organization in order to carry on the work of those organizations that have given them comfort or peace of mind during their lifetimes.  This is easily accomplished with a Revocable Living Trust.

 

        Current Federal tax laws allow you to leave an unlimited amount to a spouse, tax-free. When your spouse dies, the estate is entitled to a $5,400,000 tax exemption.  

 

WHAT IS CREDIT SHELTER TRUST IN A WILL?   The Credit Shelter Trust (sometimes referred to as a “Bypass Trust” or an “A/B Trust”) is a popular estate planning technique used by married couples with combined assets to avoid the NJ Estate Tax.           The purpose of the Credit Shelter Trust was to avoid the wasting of federal and state exemptions on the death of the first spouse. Instead of leaving all assets to the surviving spouse and thereby exposing the surviving spouse’s estate to more tax, Nursing Home & Medicaid issues, plus elective share by a future spouse, both spouse’s Wills are drafted to establish a Credit Shelter Trust to come into existence and be funded on the first spouse’s death.             In a typical Credit Shelter Trust, the surviving spouse is entitled to receive all of the income from the Trust for his or her lifetime and has the right to demand principal distributions for his or her health, education, support and maintenance in his or her accustomed manner of living. Distributions in excess of that standard require the cooperation of a Co-Trustee – often an adult child of the surviving spouse or a trust department of a bank.          Since NJ is eliminating the NJ Tax, a Testamentary Trust within the Will is still a useful device to help ensure children and grandchildren with receive money down the road. Otherwise, the surviving spouse can spend all the money in Atlantic City. The surviving spouse could also get remarried and do a new Will leaving all assets to the new spouse. Many families want to protect at least some of the money from wasteful spending or a new spouse.       If the Intervivos Trust technique is implemented as part of a Client’s Estate Plan, you can hire the attorneys for a separate fee to assist the Client in re-titling his or her assets so that assets are available to fund the Credit Shelter Trust. Re-titling is necessary because most Clients tend to hold assets jointly with right of survivorship and assets must be titled individually in a person’s name in order to be eligible to fund a Credit Shelter Trust. We work with a tax attorney to help our clients.

 

        Irrevocable Trust Accounts: Irrevocable trust accounts are deposits held by a trust established by statute or a written trust agreement in which the grantor (the creator of the trust - also referred to as a trustor or settlor) contributes deposits or other property and gives up all power to cancel or change the trust.

        An irrevocable trust also may come into existence upon the death of an owner of a revocable trust. The reason is that the owner no longer can revoke or change the terms of the trust. If a trust has multiple owners and one owner passes away, the trust agreement may call for the trust to split into an irrevocable trust and a revocable trust owned by the survivor. Because these two trusts are held under different ownership types, the insurance coverage may be very different, even if the beneficiaries have not changed.

 

WHAT IS MEDICAID..?

        Medicaid is a Federal medical bills assistance program that pays medical bills for eligible, needy persons. It is administered by each state. All payments are made directly to the providers of medical and other health care services. The Medicaid-eligible person does not pay the health care provider for services. The only exception is a patient in a Medicaid-approved nursing facility who may be required to contribute part of his/her income toward the cost of care.

 

        It is important to note Medicaid typically has a lien on assets you own.

 

        Someone can avoid Medicaid and nursing home liens by setting up an Irrevocable Trust and waiting 60 months to apply for Medicaid. 

 

In terrorem clause found viable to exclude contestor In the Matter of the Estate of Rost

 In terrorem clause found viable to exclude contestor 

In the Matter of the Estate of Rost

Claudia Handwerker appealed from the trial court's order. Claudia's mother, Annie, left behind a sizeable estate upon her death. Her will, executed in 2002, divided the estate among her four children and to several charities. 

The will also included an in terrorem clause excluding any beneficiary from the estate if they contested the will. Claudia filed a caveat following her mother's death, protesting the grant of letters of administration to Claudia's brother, Norman, or admitting the will to probate. 

Claudia later filed an amended answer removing her caveat but asserted a counterclaim objecting to appointment of Norman as executor of the estate and to the provision of the will devising a house in Princeton to Norman. Claudia alleged that Norman had stolen assets from the estate and argued that the house should be divided among the estate's assets. 

The trial court denied Claudia's counterclaim and granted Norman's order to show cause. The trial court further ruled that, by filing a caveat, Claudia had engaged in a contest of the will. The trial court found that Claudia lacked probable cause to contest the will and therefore was excluded from inheriting under the will pursuant to the in terrorem clause. The trial court devised Claudia's share of the estate to her sister. 

On appeal, the court affirmed the trial court's order. The court noted that by filing the caveat, Claudia had forced Norman to file suit in the probate part to dismiss the caveat and admit the will to probate. 

The appeal court further noted that although Claudia later withdrew the caveat, she continued to challenge the will by objecting to the appointment of Norman as executor pursuant to the terms of the will. The appeal court found that Claudia had presented no evidence to support her allegations in her counterclaim and thus did not have probable cause to contest the will.

Source https://www.law.com/njlawjournal/almID/1617903927NJA180719/

 

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION 

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. 

IN THE MATTER OF THE ESTATE OF ANNIE ROST, deceased. ________________________ 

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO. A-1807-19 

Submitted March 1, 2021 – Decided April 8, 2021 

Before Judges Sabatino, Currier, and Gooden Brown. 

On appeal from the Superior Court of New Jersey, Chancery Division, Mercer County, Docket No. 18-01409. 

Cohn Lifland Pearlman Herrmann & Knopf, attorneys for appellant Claudia Handwerker (Charles R. Cohen and Christina N. Stripp, on the briefs). 

Fox Rothschild, LLP, attorneys for respondent Deborah Hospital Foundation (Elizabeth J. Hampton and Melissa A. Terranova, on the brief). 

Philip B. Papier, Jr., attorney for respondent Norman Rost. 

PER CURIAM
Annie Rost died in September 2018, leaving behind a sizeable estate. Her 

will, executed in 2002, devised the estate among her four children and to various 

charities. It also contained an in terrorem provision that excluded any beneficiary from the estate if they contested the will. One of the beneficiaries, Annie's1 daughter, Claudia Handwerker, filed a caveat with the Mercer County Surrogate's Court six days after her mother's death, protesting the grant of letters of administration or admitting the will to probate. 

The Chancery Division judge found Claudia's caveat constituted a challenge to the will and that it was brought without probable cause. Therefore, the in terrorem clause excluded Claudia as a beneficiary and prevented her from inheriting under the will. Her share of the estate was devised to Deborah Hospital Foundation (Deborah). We affirm. 

Annie's son, (Claudia's brother), Norman, was named as the executor of Annie's estate under the will. He also was devised Annie's Princeton home. Several months after the filing of the caveat, Norman filed a certified complaint and order to show cause to dismiss the caveat and admit the will to probate. 

In response, Claudia filed an answer and unverified counterclaim. In her answer, Claudia "consent[ed] to removing the Caveat, allowing the Will to be probated and ask[ed] that the relief set forth in the attached counter-claim be 

1 As a number of the individuals share a surname, we will refer to them by their first names. We mean no disrespect. 

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granted." In the counterclaim, Claudia objected to "Clause No. [seven] of the Will giving the Princeton house to my brother" and further objected to his appointment as executor under the will. 

Because the Surrogate did not accept the unverified counterclaim, several days later Claudia filed a motion seeking leave to file an amended answer and counterclaim. See R. 4:67-4(a) ("No counterclaim or crossclaim [in a summary action] shall be asserted without leave of court."). 

The amended answer and counterclaim "consent[ed] to removing the Caveat and allowing the Will to be probated. . . ." It also "object[ed] to Clause No. [twelve] of the Will appointing Norman Rost, Executor, and Sonya Bradski as Substitute Executor."2 The answer requested that Claudia be appointed executor. It further "object[ed] to Clause No. [seven] of the Will giving the Princeton house to my brother Norman Rost. . . ." Claudia did not verify the pleadings or provide any certification or affidavits to support her claims. 

In March 2019, the Deputy Surrogate held a telephone conference with the attorneys for Claudia, Norman, and Deborah. Although the Deputy Surrogate suggested the parties sign a consent order allowing the will to be 

2 Sonya was one of Claudia's sisters.
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probated, Claudia's attorney refused to do so unless the will was modified to contain the conditions listed in Claudia's answer and counterclaim. 

Norman's order to show cause was heard on March 27, 2019. Claudia's attorney told the court Claudia had not seen the will until after she filed her caveat. Counsel further stated: 

Judge, we do not oppose the introduction of this will today. The provisions of this will, [ninety] percent of it, my client's okay with. She will withdraw the caveat which I said in my answer. She will allow the will to be probated. She will allow the will to proceed. We are here, Judge, on a motion to allow my counterclaim to proceed. . . . 

In addressing the motion to allow the filing of the amended answer and counterclaim, Claudia's counsel argued that Norman should not be the executor of the estate because "he stole about a million dollars from [the] estate. . . ." He also asserted that the Princeton house should not be given to Norman as specified in the will, but rather distributed as part of the estate's assets. Counsel requested time for discovery to prove the alleged claims stating, "I think the heir should be given the opportunity to prove to this [c]ourt that this executor is not honest." 

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The Chancery judge noted the record before him did not support Claudia's allegations, nor did she supply a certification in anticipation of the hearing. He stated: 

I don't have anything in support of this counterclaim today. . . . There's nothing in here to indicate that there's any fact supporting this. This is a return date on the order to show cause. This is a summary trial. Since you already agreed the will could be probated, there's nothing about the proving of the will that needs to be tried so there's no discovery required. 

In ruling on the order to show cause, the court stated: 

This is a summary proceeding pursuant to Rule 4:83-1 which requires all actions and probate to be brought in a summary manner. With the exception of matters where there [are] question[s] about the proving of the will pursuant to [Rule] 4:84-2, the matters in probate are to be tried in a summary fashion which means trial on the return date without the need for discovery. 

In light of the fact here that there has been agreement that the will can be probated, there is no issue with regard to the proving of the will. There has been no evidence submitted to support the counterclaim. It is an unverified complaint without any underlying facts. Therefore, the [c]ourt finds that . . . plaintiff is entitled to judgment, dismissing the caveat and allowing the will to be admitted to probate. 

I'm denying the application to file the counterclaim in light of the fact that there is no underlying support for the counterclaim. So judgment for the plaintiff. 

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The court issued a final judgment on March 27, 2019 (amended on March 28, 2019) dismissing Claudia's caveat with prejudice, admitting the will to probate, and denying Claudia's motion to file a counterclaim. Claudia did not move for reconsideration or appeal the order. 

On April 26, 2019, Claudia filed a verified complaint and order to show cause demanding an accounting of the estate, the appointment of a temporary executor and attorney's fees for bringing the action. On May 2, 2019, Deborah filed a verified complaint to enforce the in terrorem provision of the will. 

During oral argument on the orders to show cause on August 23, 2019, Claudia's counsel argued that Claudia had "never contested this Will. Now, yes, a caveat was filed. That's admitted. The caveat, when it was filed, she had never seen the Will. And the caveat was immediately withdrawn when my answer was filed. So, the caveat is not a contest to the Will." Counsel contended Claudia had not been given the opportunity to present her argument that she had probable cause to file the caveat. 

The Chancery court made the following findings: 

[T]he first issue before the [c]ourt is whether the caveat serves as a challenge to the Will in this case. And I would direct the parties to the language in In Re Stockdale, 196 N.J. 275 (200[8]). There, Justice Hoens stated, . . . the caveat is the formal mechanism by which one gives notice of a challenge to a Will that has been 

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or is expected to be offered for probate[.] See In Re Myers' Will, 20 N.J. 228, 235 (1955) (explaining that standing to lodge caveat requires status as when injured by probate of the Will being contested); In Re Hand's Will, 95 N.J. Super. 182, 187, (App. Div. 1967) (analyzing requirement of injury sufficient for standing to lodge caveat). 

The act of lodging or filing the caveat prevents the surrogate from issuing letters that otherwise would operate so as to authorize a particular individual or entity to begin the administration of the Estate, and causes the matter to be pursued, generally in a summary matter by way of an order to show cause and formal complaint in the Probate Part. See [R.] 4:83-1. 

Alternatively, if a Will has already been admitted to probate, it may be challenged by the timely filing of a complaint in the Probate Part. See [R.] 4:85-1. . . . A variety of grounds on which to secure relief are generally available, the most common of which is the assertion that the will was the product of undue influence. [Stockdale, 196 N.J. at 302.] 

So, as I said, this matter had previously been before the [c]ourt back on March 27th. So, the [c]ourt does find that the filing of a caveat operated as a challenge to the Will unquestionably, based upon the language from Stockdale. So, the question is whether or not this [c]ourt has already made a determination that there was a lack of probable cause for the caveat. And as I said during argument, unquestionably, [Claudia] totally failed to present the [c]ourt with any demonstration of any admissible support in connection with her caveat. 

The [c]ourt made that finding before, that operates as the law of the case. The [c]ourt finds, therefore, that pursuant to the statute [ N.J.S.A. 3B:3-47] that there has 

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been no showing of probable cause to support the caveat. Therefore, there is no reason for the [c]ourt to set aside the in terrorem clause. So, I'm going to enter judgment in favor of Deborah Hospital. 

The court dismissed Claudia's complaint.
The subsequent September 5, 2019 order provided that: (1) Claudia lacked 

probable cause to contest the will; (2) the in terrorem clause excluding Claudia from inheriting under the will shall be enforced; and (3) Claudia's share in the estate is devised to Deborah. 

Claudia moved for reconsideration. She contended that she withdrew the caveat after she received a copy of the will and that the "only thing I ever challenged was the Executor's conduct prior to the death and just after our mother's death." She also certified that on April 26, 2019 she filed a verified complaint, challenging "Norman's appointment as Executor and . . . provid[ed] ample probable cause to challenge the appointment of the executor, my brother Norman Rost." 

After oral argument on November 15, 2019, the Chancery judge denied the motion, stating: 

The [c]ourt's decision at the August 23rd hearing was based upon the [c]ourt's prior decision in which the [c]ourt granted judgment in favor of the executors [to] allow the Will to be probated. 

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Prior to the complaint having been filed, . . . defendant, Claudia Handwerker had filed a caveat to the Will. The caveat was filed on September 18th, 2018 and the caveat read as follows: 

"I, Claudia Joan Handwerker, daughter of Annie Rost . . . late of the Town of Princeton, County of Mercer, State of New Jersey, who died on September 12th, 2018, do hereby caveat and protest against the granting of letters of administration or admitting to probate any paper purporting to be the Will of Annie Rost, as well as the appointment of a personal representative of the Estate of Annie Rost." 

That caveat necessitated the filing of the complaint and order to show cause by the executor to have the Will admitted to probate and to remove the caveat. As explained by the [c]ourt, both on the last occasion and the occasion prior to that, a caveat is a challenge to the Will and the [c]ourt cited, [In Re Stockdale, 196 N.J. at 275.] 

In Stockdale, the Court stated, "A caveat is the formal mechanism by which one gives notice of a challenge to a Will that has been or is expected to be offered for probate." 

"The act of lodging or filing the caveat prevents the surrogate from issuing letters that otherwise would operate, so as to authorize a particular individual or entity to begin the administration of the estate and causes the matter to be pursued generally in a summary matter by way of an order to show cause and formal complaint in the probate part[.]" [Id. at 302.] 

Now, there's no question in this [c]ourt's mind that trial courts are obligated to follow the holdings under the New Jersey Supreme Court. The legal findings and 

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determinations of the Supreme Court must be accorded conclusive weight by the lower courts. See . . . State v. Breitweiser, [373 N.J. Super. 271, 282-83 (App. Div. 2004).] 

"Appellate and trial courts consider themselves bound by the Court's pronouncements whether classified as dicta or not[.]" State v. Dabas, 215 N.J. 114, 136-37. 

As if the caveat would not have been enough to demonstrate to the [c]ourt that there was a challenge to the Will, there was also the answer and amended answer that were prepared and submitted by defendant, Handwerker. 

On the original answer and counterclaim, Paragraph [two] of the counterclaim reads as follows[:] "I object to Clause Number [seven] of the Will giving the Princeton house to my brother Norman Rost, for reasons set forth below." 

Additionally, on the amended answer and counterclaim, Paragraph [three] of the counterclaim reads as follows[:] "I object to Clause Number [seven] of the Will giving the Princeton house to my brother Norman Rost, for reasons set forth below." 

So, this already had been discussed at the time of . . . the original order to show cause by the executor to probate the Will. There was no evidence at all submitted by [d]efendant Handwerker. So, there was no demonstration of any justification whatsoever for the filing of the caveat. 

Thus, when Deborah Hospital filed its complaint and order to show cause, it would have been an exercise in futility for the [c]ourt to have to go back and re- examine the record in light of the fact that defendant 

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Handwerker failed to present the [c]ourt with any facts supporting her caveat at the time of the first return date. 

So, for these reasons, the [c]ourt finds that there was no justification for reconsideration of the [c]ourt's decision and the [c]ourt will deny the motion for reconsideration. 

The court memorialized its decision in a December 3, 2019 order.
We review the denial of a motion for reconsideration for an "abuse of discretion." Cummings v. Bahr, 295 N.J. Super 374, 389 (App. Div. 1996) (citation omitted). In reviewing a summary action conducted pursuant to Rule 

4:67, we accord findings made by the trial judge as binding when supported by adequate, substantial and credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). However, a trial judge's "interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference" and are subject to de novo review. Est. of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 382 (2010). 

On appeal, Claudia argues that her caveat was not a challenge to Annie's will. She argues that the court ignored her proofs at the August 23, 2019 hearing and again erred in denying her motion for reconsideration. We are not persuaded. 

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Six days after her mother's death, Claudia filed the following letter with the surrogate's court: 

I, Claudia Joan Handwerker, Daughter of Annie Rost, late of the town of Princeton, County of Mercer, State of New Jersey, who died on September 12, 2018, do hereby caveat and protest against the granting of Letters of Administration, or admitting to probate any paper writing purporting to be the Will of Annie Rost, as well as the appointment of a personal representative of the Estate of Annie Rost. 

[(Emphasis added).]
Norman and Deborah assert that this caveat invoked Paragraph Fourteenth 

of Annie's will, which stated: 

Any beneficiary under this, my Will, who shall institute, prosecute or abet any action to contest or to set aside in whole or in part this, my Will, shall be excluded from any share or interest in my estate, and I hereby direct that the property or interest to which he or she might otherwise have become entitled shall be devised to DEBORAH HOSPITAL FOUNDATION, for general purposes, absolutely and in fee simple, with the exception that the devises under Paragraphs Seventh and Eighth would become part of my residuary estate and distributed pursuant to Paragraph Ninth. 

Claudia contends she did not intend to "contest" the will and therefore Paragraph Fourteenth was not triggered. 

An uncontested, straightforward will may be admitted to probate through the Surrogate's Court. However, "if a caveat has been lodged against the will 

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offered or expected to be offered for probate, the Surrogate's Court is not empowered to act and the issues must instead be resolved through proceedings in the Superior Court, Chancery Division, Probate Part. . . ." Stockdale, 196 N.J. at 302. See R. 4:83-1. 

As our Supreme Court has stated, "A caveat is the formal mechanism by which one gives notice of a challenge to a will that has been or is expected to be offered for probate." Ibid. 

The act of lodging, or filing, the caveat prevents the Surrogate from issuing letters that otherwise would operate so as to authorize a particular individual or entity to begin the administration of the estate and causes the matter to be pursued, generally in a summary manner, by way of an order to show cause and formal complaint, in the Probate Part. 

[Ibid.]
Claudia filed the caveat and refused to withdraw it before litigation 

ensued. Therefore, as required by Rule 4:83-1, Norman was compelled to commence suit in the Probate Part to dismiss the caveat and admit the will to probate. He filed an order to show cause and a complaint in a summary manner pursuant to Rule 4:67, returnable March 27, 2019. The order to show cause requested the court dismiss the caveat filed by Claudia with prejudice and file and record Annie's will with the Surrogate's Court. 

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In response, Claudia filed an unverified answer in which she – at that point – consented to the removal of the caveat and allowed the will to be probated. However, in her counterclaims, Claudia objected to Paragraph Twelfth of the Will, in which Norman and Sonya were named executors. She asked that she be named executor instead. She also objected to Paragraph Seventh, under which Annie's home was devised to Norman. 

Claudia's argument that the caveat was not a challenge to the will is without merit. Although, upon being sued, she agreed to withdraw the caveat, she continued to object to and contest the will. Despite her contention that she withdrew her caveat, her counterclaims clearly attempted to "contest or to set aside in whole or in part" the provisions laid out in Annie's will, in violation of Paragraph Fourteenth. 

As we are satisfied the Chancery court did not err in finding the caveat operated as a challenge to the will, we must then consider whether the court also properly found there was no probable cause to support the caveat. Claudia contends she presented "substantial evidence that her actions were supported by probable cause" and therefore the in terrorem clause is not enforceable. She also asserts she was deprived of her due process rights when the court failed to 

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conduct an evidentiary hearing to determine whether she had probable cause to file the caveat. 

As stated, once Claudia filed her caveat, the Probate Part of the Chancery Division had jurisdiction over the matter. And, as required under Rule 4:83-1, "all actions in the Superior Court, Chancery Division, Probate Part, shall be brought in a summary manner by the filing of a complaint and issuance of an order to show cause pursuant to [Rule] 4:67." "Summary actions are, by definition, short, concise, and immediate, and further, are 'designed to accomplish the salutary purpose of swiftly and effectively disposing of matters which lend themselves to summary treatment.'" MAG Entm't LLC v. Div. of Alcoholic Beverage Control, 375 N.J. Super. 534, 551 (App. Div. 2005) (quoting Depos v. Depos, 307 N.J. Super. 396, 399 (Ch. Div. 1997)). 

If a court is satisfied that a plaintiff's application is sufficient, the court "shall order the defendant to show cause why final judgment should not be rendered for the relief sought." R. 4:67-2. "The court shall try the action on the return day" and if "the affidavits show palpably that there is no genuine issue as to any material fact, the court may try the action on the pleadings and affidavits and render final judgment thereon." R. 4:67-5. "If any party objects to such a trial and there may be a genuine issue as to a material fact, the court shall hear 

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the evidence as to those matters which may be genuinely in issue and render final judgment." Ibid. 

Norman filed a verified complaint and order to show cause to dismiss the caveat and admit the will to probate pursuant to Rule 4:83-1. In response, Claudia filed an answer and counterclaim and a subsequent amended answer and counterclaims. All of the submitted and proffered pleadings were unverified. 

At the hearing on the return date of the order to show cause, March 27, 2019, Claudia sought the court's leave to file her amended answer and counterclaim. Her attorney stated, "[w]e want to correct some . . . things in the will" and "prove that this executor is not honest enough to conduct the job." Claudia's counsel admitted that "[t]hese are allegations, Judge." Moreover, during argument on the motion for reconsideration, Claudia's counsel candidly admitted: "[W]e didn't offer anything in March to support our caveat. We didn't offer any probable cause in March. We didn't really come up with anything in March. That's all true Judge."

Based on the record before us, Claudia was accorded adequate due process. Norman's complaint and order to show cause were brought as a summary action under Rule 4:83-1. The court properly tried the action on the return day pursuant to Rule 4:67-5. Claudia had the burden to produce evidence 

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to the court to establish why Norman's requested relief should not be granted. Because Norman sought to admit the will in its entirety and Claudia challenged two provisions of the will, it is clear Claudia continued to contest the will and, therefore, she was required to show probable cause to support her caveat on the return date. 

Claudia did not do so. She did not present any verified pleadings, affidavits, or certifications to rebut the complaint. To the contrary, even six months after the filing of the caveat, on the day of trial of the summary action, her attorney requested time and discovery to prove her allegations. Because there was "no genuine issue as to any material fact," the court properly decided the action on the pleadings. See R. 4:67-5. 

N.J.S.A. 3B:3-47 provides that "[a] provision in a will purporting to penalize any interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable if probable cause exists for instituting proceedings." See Haynes v. First Nat. State Bank of N.J., 87 N.J. 163, 189 (1981) ("We . . . decline to enforce an in terrorem clause in a will or trust agreement where there is probable cause to challenge the instrument."). 

Following the August 23, 2019 arguments, the court found Claudia did not present any evidence to support her challenge to the will at the March 27 

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hearing on the order to show cause. The court affirmed its decision that the caveat was a challenge to the will during the arguments on Claudia's motion for reconsideration. The judge stated: 

As if the caveat would not have been enough to demonstrate to the [c]ourt that there was a challenge to the Will, there was also the answer and amended answer that were prepared and submitted by defendant, Handwerker. 

On the original answer and counterclaim, Paragraph [two] of the counterclaim reads as follows[:] "I object to Clause Number [seven] of the Will giving the Princeton house to my brother Norman Rost, for reasons set forth below." 

Additionally, on the amended answer and counterclaim, Paragraph [three] of the counterclaim reads as follows[:] "I object to Clause Number [seven] of the Will giving the Princeton house to my brother Norman Rost, for reasons set forth below." 

So, this already had been discussed at the time of . . . the original order to show cause by the executor to probate the Will. There was no evidence at all submitted by [d]efendant Handwerker. So, there was no demonstration of any justification whatsoever for the filing of the caveat. 

Thus, when Deborah Hospital filed its complaint and order to show cause, it would have been an exercise in futility for the [c]ourt to have to go back and re- examine the record in light of the fact that defendant Handwerker failed to present the [c]ourt with any facts supporting her caveat at the time of the first return date. 

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So, for these reasons, the [c]ourt finds that there was no justification for reconsideration of the [c]ourt's decision and the [c]ourt will deny the motion for reconsideration. 

The absence of probable cause for the filing of the caveat requires the enforcement of the in terrorem clause as a matter of law. The trial court properly found that Claudia's caveat was an action challenging the will in derogation of the in terrorem clause under Paragraph Fourteenth of Annie's will. 

Any claims not addressed lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). 

Affirmed. 

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