Bank did not have duty to monitor trust account Harry Kuskin 2008 Irrevocable Trust v. PNC Fin. Group, Inc. A-1937-21

 Bank did not have duty to monitor trust account Harry Kuskin 2008 Irrevocable Trust v. PNC Fin. Group, Inc. A-1937-21

Plaintiff trusts appealed grant of summary judgment to defendant in action over individual fiduciary's misconduct while serving as trustee. Individual was named as trustee when trusts were established in 2008. Individual opened deposit accounts for each trust with defendant, opened an investment management account for each trust in 2014 and transferred $5 million from deposit accounts into the investment management account. Individual requested a line of credit from defendant, using trust assets as collateral, for the benefit of a business in which he was a partner. Defendant denied the line of credit and individual transferred money from trust deposit accounts to his company. Individual later confessed he misappropriated funds from trusts and resigned as trustee. Plaintiffs alleged negligence, breach of contract, aiding and abetting and breach of fiduciary duty against defendant. Defendant argued it was immune under the Uniform Fiduciaries Law and trial court agreed and found plaintiffs' tort claims were barred by the economic loss doctrine. Plaintiffs argued defendant had a "special relationship" with them and failed to monitor the deposit accounts and disclose suspicious activity. Court found defendant owed no duty to monitor the trust accounts, rejected the aiding and abetting claims and found defendant was immune under the UFL.

source NJLJ July 24, 2023

Quick v. Morgan Stanley A-0443-21

 Change of Beni forms must comply with procedures to be valid

Plaintiffs appealed the trial court's grant of summary judgment to defendants. The parties disputed the rightful beneficiaries of a Roth IRA account owned by decedent. Decedent held two accounts with Morgan Stanley, although the parties only contested ownership of one of the accounts. Decedent had two children prior to marrying his second wife, Marie. Marie also had a daughter from a prior relationship, plaintiff Denise Quick-Moschette. Decedent and Marie had one child together, Mark, who predeceased his parents but left a son, defendant Jacob Quick. Decedent and Marie had four other grandchildren, who were the defendants in the case. Decedent submitted a beneficiary designation form in 2017. The prior form submitted in 2015 named defendants as the primary beneficiaries. After Marie passed away, a Morgan Stanley representative sent decedent new beneficiary forms mistakenly believing that Marie was the beneficiary for both of decedent's accounts. Decedent enlisted the assistance of a long-time business assistant to complete the forms, naming Jacob and plaintiffs as beneficiaries but failing to designate which account the form applied to. Because the form failed to designate an account, the Morgan Stanley rep handwrote both of decedent's account numbers on the form. However, the rep later spoke with decedent and clarified that he wished to keep his beneficiary designations the same. In 2018, decedent submitted another beneficiary form naming plaintiffs and Jacob as beneficiaries of an unidentified account; decedent later clarified that he intended to apply the form to the account not in dispute. Following decedent's death, plaintiffs contested the validity of the 2015 form based on the 2017 form. The trial court granted summary judgment for defendants, finding that the 2015 form controlled. On appeal, the court affirmed, finding that decedent had failed to comply with Morgan Stanley's procedures for effecting a beneficiary change with the 2017 form. The court further noted that decedent expressly informed the firm in 2017 that he wished to keep his beneficiary designations the same from the 2015 form. 

source NJLJ June 29, 2023

Recording of Deed showed Donative intent Branco v. Rodrigues A-3030-21

 Defendant appealed the order of the trial court granting summary judgment that quieted title to property formerly owned by Jose Rodrigues. Rodrigues, who originally owned the property in fee simple, later conveyed the property to himself and plaintiff as joint tenants with right of survivorship. Plaintiff had a long-term live-in relationship with Rodrigues that lasted for approximately 25 years until Rodrigues' death in a car accident in 2020. Rodrigues owned multiple properties, including the subject property in the case, a multifamily income-producing property.

Recording of Deed showed Donative intent   Branco v. Rodrigues A-3030-21

    In March 2007, after plaintiff and Rodrigues had been together for about 12 years, Rodrigues conveyed the property to himself and plaintiff as joint tenants with right of survivorship. Plaintiff was unaware of the transfer and did not sign the deed. Instead, only Rodrigues signed the deed and recorded it. After Rodrigues' death, defendant, Rodrigues' son and the administrator of his estate, began forwarding monthly rent checks from the property to plaintiff. Plaintiff finally discovered Rodrigues' transfer of the property when she conducted a title search and learned of her interest in the property. Plaintiff formed a real estate holding company and transferred title to the property to it.
Plaintiff filed the present quiet title action against defendant and Rodrigues' estate. The trial court granted summary judgment in favor of plaintiff, finding that the undisputed evidence demonstrated that Rodrigues had validly effected an inter vivos gift transfer. The trial court ruled that plaintiff's lack of knowledge of the transfer was immaterial, as Rodrigues' recording of the deed demonstrated his intent to gift plaintiff an interest in the property and put third parties on notice of plaintiff's property interest.
On appeal, defendant argued that any inter vivos gift transfer was defective because plaintiff could not demonstrate intent, delivery, and acceptance by plaintiff. The court rejected defendant's argument and affirmed the trial court's summary judgment. The court ruled that defendant had failed to produce any evidence of a lack of donative intent by Rodrigues; instead, the court agreed with the trial court that recording the deed demonstrated Rodrigues' donative intent. The court found that the circumstances surrounding the transfer indicated that Rodrigues intended for the transfer to be a gift, which also supported a presumption of acceptance by plaintiff.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

LIDIA BRANCO, Plaintiff-Respondent,

v.

FRANCISCO ANDRE RODRIGUES, and Estate of JOSE RODRIGUES,

Defendants-Appellants, and

MONICA MEJIA,
MANUEL COSTA, JONATHAN RODRIGUES (person with potential interest), and JOANNA RODRIGUES (person with potential interest),

Defendants. ____________________________

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO. A-3030-21

Submitted April 25, 2023 – Decided June 20, 2023

Before Judges Sumners, Susswein, and Berdote Byrne.

On appeal from the Superior Court of New Jersey, Chancery Division, Middlesex County, Docket No. C-000187-20.

 APPROVED FOR PUBLICATION June 20, 2023 APPELLATE DIVISION

The opinion of the court was delivered by

BERDOTE BYRNE, J.S.C. (temporarily assigned)
In this appeal of apparent first impression in New Jersey, we are asked to

resolve the outcome of an inter vivos transfer of a fee simple estate into a joint tenancy, where the donor pre-deceased the donee, who was unaware of her estate interest.

Defendants, Francisco Andres Rodrigues and the Estate of Jose Rodrigues (Estate), appeal an award of summary judgment quieting title to property formerly owned by Jose Rodrigues in fee simple, but subsequently conveyed to him and plaintiff, Lidia Branco, as joint tenants with rights of survivorship. Defendants argue the trial court erred in granting summary judgment because there were disputed facts clouding the issues of donative intent, delivery, and acceptance. We disagree and affirm.

Lidia1 lived with Jose for approximately twenty-five years in a long-term relationship until he died in a car accident in June 2020. The two were never married. Jose was an entrepreneur who owned several entities and properties, including a sixteen-unit multifamily residential building in Newark, (the 1

We use first names because multiple parties have the same last name; we intend no disrespect to the parties by the informality.

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property), which he owned since 1996. The property was an income- producing asset for Jose, who died intestate.

Francisco is one of Jose's sons and the administrator of his estate. Francisco was the only named defendant to appear before the trial court; the other defendants were named as interested parties but never appeared and default was entered against them.

In March 2007, when Jose and Lidia had been together for twelve years, and unbeknownst to her, Jose conveyed title to the property, for nominal consideration, from himself in fee simple to himself and Lidia as joint tenants with rights of survivorship. Jose was the only signatory on the deed transferring title. The deed was recorded in April 2007. Jose never told Lidia about the conveyance, and she did not discover the conveyance until after his death, more than thirteen years later.

In June 2020, Jose died in an automobile accident. In July 2020, Francisco began forwarding monthly rental checks from the property to Lidia. In August 2020, Lidia ordered a title search of the property, whereby she first discovered her interest in the estate. Upon learning of her interest, Lidia formed a real estate holding company and transferred title of the property to the entity.

3

A-3030-21

In December 2020, Lidia filed a verified complaint seeking injunctive relief, including a full accounting and independent administration of the Estate, and an injunction to block the Estate from transferring or otherwise transacting business involving the property. Lidia eventually voluntarily dismissed all claims except the quiet title. Discovery proceeded in the normal course, and in January 2022, the trial court entertained cross-motions for summary judgment.

The issue framed to the trial court was whether the property transfer was an effective inter vivos gift. Finding for Lidia, the court found the undisputed record contained the requisite elements of an inter vivos gift transfer. Regarding donative intent, the court noted the twenty-five-year relationship where Jose continuously supported Lidia financially with income generated by the property. The court found, irrespective of Lidia's lack of awareness of her property interest during Jose's lifetime, the fact the deed was recorded constituted constructive notice to third parties about Lidia's property interest, and therefore favored her. Defendants appealed.

We conduct a de novo review of an order granting a summary judgment motion, Gilbert v. Stewart, 247 N.J. 421, 442 (2021), applying "the same standard as the trial court under Rule 4:46-2(c)," State v. Perini Corp., 221 N.J. 412, 425 (2015). In considering a summary judgment motion, "both trial and

 

4

A-3030-21

appellate courts must view the facts in the light most favorable to the non- moving part[ies]," which, in this case, are defendants. Bauer v. Nesbitt, 198 N.J. 601, 604 n.1 (2009). Summary judgment is proper if the record demonstrates "no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment . . . as a matter of law." Burnett v. Gloucester Cnty. Bd. of Chosen Freeholders, 409 N.J. Super. 219, 228 (App. Div. 2009) (quoting R. 4:46-2(c)). Issues of law are subject to the de novo standard of review, and the trial court's determination of such issues is accorded no deference. Meade v. Twp. of Livingston, 249 N.J. 310, 326-27 (2021); Kaye v. Rosefielde, 223 N.J. 218, 229 (2015).

We must be mindful that "an issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non- moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (1995). "In order to demonstrate the existence of a genuine issue of material fact, the opposing party must do more than point to any fact in dispute." Globe Motor Co. v. Igdalev, 225 N.J. 469, 479 (2016).

Defendants contend Lidia failed to produce dispositive evidence of Jose's donative intent. They argue the transfer of title was an inter vivos gift;

       

5

A-3030-21

the gift was defective, and the transfer was void because the requisite elements –– delivery, intent, and acceptance –– were not established. They complain the lack of evidence on these elements prevented Lidia from sustaining her burden of proof, and therefore, as a matter of law, should have precluded summary judgment. Although we agree determination of the issue before us depends upon whether the transfer deed was a valid inter vivos gift, we reject defendants' arguments and affirm the trial court's order.

Joint tenancy is one of the earliest forms of estate interest, dating back to the thirteenth century. See 7 Powell on Real Property § 51.01(1) (2023). From its inception, the law has allowed two or more persons to own undivided interests in the real property. See 4 Thompson on Real Property § 31.02 (Thomas ed. 2023). The right of survivorship to be held by co-equal co- owners is the essence of the joint tenancy estate and does not exist in other estate interests. See 13 N.J. Practice, Real Estate Law and Practice §§ 5:2 - 5:10 (Henry C. Walenctowicz) (2023).

In New Jersey, joint tenancies are authorized by statute. N.J.S.A. 46:3- 17.1 provides:

Any conveyance of real estate, hereafter made, by the grantor therein, to himself and another or others, as joint tenants shall, if otherwise valid, be as fully effective to vest an estate in joint tenancy in such real estate in the grantees therein named, including the grantor, as if the same had been conveyed by the

  

6

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grantor therein to a third party and by such third party to said grantees.

Our statute, enacted in 1950,2 reflects a departure from previous common law requirements by allowing direct conveyances from a grantor to him or herself and another, circumventing the need for a "straw man."3 See, e.g., Lipps v. Crowe, 28 N.J. Super. 131 (Ch. Div. 1953) (retroactively permitting direct conveyance to a 1926 joint tenancy deed which predated the enactment).

In New Jersey, ownership of real property is transferred by deed. N.J.S.A. 46:3-13; see also H.K. v. State, Dep't of Human Servs., Div. of Med. Assistance & Health Servs.,184 N.J. 367, 382 (2005) (setting forth examples of such transfers). "Transfer of real property interest by deed is complete upon execution and delivery of the deed by the grantor, and acceptance of the deed by the grantee." Ibid. (quoting In re Estate of Lillis, 123 N.J. Super. 280, 285 (App. Div. 1973)). "A deed transfers a property interest 'upon delivery.'" Ibid. (quoting Tobar Constr. Co. v. R.C.P. Assocs., 293 N.J. Super. 409, 413 (App.

2 L. 1950, c. 71.

3

     

At common law, there was no uniform interpretation regarding the legal consequence of such a direct conveyance on the four unities of time, title, possession, and interest required by joint tenancy. This occasionally necessitated a straw man conveyance. See generally 7 Powell § 51.02.

 

7

A-3030-21

Div. 1996)). "Delivery can be shown by '[a]nything that clearly manifests the grantor's intention that the deed become immediately operative and that the grantee become the owner of the estate purportedly conveyed.'" Ibid.

The requisite elements for an inter vivos gift are nearly identical to those required for an effective deed transfer. See In re Dodge, 50 N.J. 192, 216 (1967). To demonstrate a valid and irrevocable gift, a donee must establish four elements:

First, the donor must perform some act constituting the actual or symbolic delivery of the subject matter of the gift. Second, the donor must possess the intent to give. Third, the donee must accept the gift. Our cases also recognize an additional element, the relinquishment by the donor "of ownership and dominion over the subject matter of the gift."

[Sipko v. Koger, Inc., 214 N.J. 364, 376 (2013) (quoting Pascale v. Pascale, 113 N.J. 20, 29 (1988)).]

"The proof of these essential elements should be clear, cogent, and persuasive." Ibid. (quoting Farris v. Farris Eng'g Corp., 7 N.J. 487, 500-01 (1951)).

Much of the litigation reviewing courts have considered involving inter vivos gift challenges has dealt with issues regarding the donor's capacity, particularly in the context of undue influence. See Bhagat v. Bhagat, 217 N.J. 22, 45 (2014) (holding a parent who seeks to rebut a presumption that a property transfer to their child was a gift must present clear and convincing

    

8

A-3030-21

evidence of a contrary intent); Pascale, 113 N.J. at 31-32; Dodge, 50 N.J. at 241; see also Oachs v. Stanton, 280 N.J. Super. 478, 485-86 (App. Div. 1995). We have not yet been asked to opine on the present scenario – a challenge to donative intent based not on undue influence – because it is undisputed the donee here was unaware of the gift until after donor passed away.

In New Jersey, there has been no lack of challenges on the elements of an effective deed transfer where a deed was never recorded;4 however, we do not find successful challenges to an effective transfer where, as here, a deed was recorded. We believe those reasons to be self-evident.

The owner of an interest in real property is generally prohibited from effecting transfer unless evidenced by a signed writing "by or on behalf of the transferor" because of the New Jersey Statute of Frauds. N.J.S.A. 25:1- 11(a)(1). The Statute of Frauds writing requirement is so fundamental to the adjudication of property transfers in New Jersey, it is in certain circumstances fatal to litigants seeking to enforce a real property right derived from oral agreements, such as an antenuptial oral promise. See Gilbert v. Gilbert, 61 N.J. Super. 476 (Ch. Div. 1960) aff'd, 66 N.J. Super. 246, 253-54 (App. Div. 1961).

     

4 See, e.g., H.K., 184 N.J. at 382-83.
9

A-3030-21

Moreover, New Jersey is a "race-notice" jurisdiction, and its status as such generally rewards those who record their deeds first. N.J.S.A. 46:26A- 12(a)-(c); Cox v. RKA Corp., 164 N.J. 487, 496 (2000).5 A recorded deed serves as constructive "notice to all subsequent purchasers, mortgagees and judgment creditors" of its execution. N.J.S.A. 46:26A-12(a). "A deed or other conveyance of an interest in real property shall be of no effect . . . unless that conveyance is evidenced by a document that is first recorded." N.J.S.A. 46:26A-12(c).

Lidia possesses a recorded deed satisfying both the Statute of Frauds, N.J.S.A. 25:1-11, and the recording statute, N.J.S.A. 46:26A-12. Defendants argue "[Jose's] actions in not informing [Lidia] of the execution and existence of the deed is demonstrative of a concerted decision on the part of [Jose] to not finalize the claimed gift." Defendants proffer no other evidence to support a lack of donative intent and their arguments in the face of a recorded deed are unavailing. See Ridge at Back Brook, LLC v. Klenert, 437 N.J. Super. 90, 97- 98 (App. Div. 2014) ("Bald assertions are not capable of either supporting or

5

  

"New Jersey is considered a 'race-notice' jurisdiction, which means that as between two competing parties the interest of the party who first records the instrument will prevail so long as that party had no actual knowledge of the other party's previously-acquired interest . . . . As a corollary to that rule, parties are generally charged with constructive notice of instruments that are properly recorded." (citations omitted).

10

A-3030-21

defeating summary judgment."). The very act of recording the deed conveying title in this case evinced Jose's donative intent. See Pascale, 113 N.J. at 29 ("An adult donor is generally presumed to be competent to make a gift.").

Moreover, although a "deed does not need to be recorded in order to pass title," the recorded deed here raises a strong presumption of delivery because it clearly manifests Jose's intent that the deed become immediately operative. H.K., 184 N.J. at 382. Courts generally look to intent when there has been no recording because intent may be a disputed material fact. Here, there can be no dispute regarding Jose's intent because he recorded the deed, rendering the joint tenancy immediately operable.

Commentators have noted where a donor transfers real estate into joint tenancy, the transfer may be presumed to be a gift. See 15 Powell § 85.21. That presumption applies here, where Jose transferred the property unilaterally, unbeknownst to Lidia, and dissolved his greater fee simple interest. Like any presumption, it may be rebutted with clear and convincing evidence. Defendants have failed to proffer any evidence to rebut this presumption.

Because the gift may be presumed, the element of acceptance by donee may also be presumed, "subject to the donee's right to disclaim the gift within a reasonable time after the donee becomes aware of the gift." See Restatement

  

11

A-3030-21

(Second) of Property (Donative Transfers) § 32.3(2) and cmt. e (Am. Law Inst. 2009).

As to the additional element of donor relinquishment, there can also be no doubt regarding Jose's actions. When Jose unilaterally dissolved his fee simple interest in favor and recorded the deed, he could not have subsequently unilaterally revoked the gift to transform the property back into a fee simple estate without Lidia's consent or the court's involvement. See Brodzinsky v. Pulek, 75 N.J. Super. 40, 50 (App. Div. 1962) ("A joint tenancy may be terminated altogether by mutual agreement between the parties . . . .") (citation omitted).

While Jose could have petitioned a court of equity for partition to sever the real property, such an act would have merely converted both parties' interest into a tenancy in common; it would not have the effect of revoking the gift or the effect of restoring him to his fee simple estate. Id. at 49-50 ("A joint tenancy may be converted into a tenancy in common . . . by the unilateral act of one of them in alienating or transferring his interest in the jointly owned property so as to destroy one or more of the four constituent unities . . . ."); see also Gauger v. Gauger, 73 N.J. 538, 542-43 (1977). Thus, the effect of recording the deed with a lesser title irrevocably destroyed Jose's fee simple

   

12

A-3030-21

interest and satisfied the total relinquishment element necessary for an inter vivos gift.

In arguing there was no evidence to support donative intent, defendants wholly disregarded both Jose's unilateral execution and recording of the deed. In failing to present any evidence to the contrary, defendants failed to present disputed issues of material fact precluding summary judgment, which was properly awarded to Lidia.

Affirmed.

13

A-3030-21

Sayreville Public Library Wills & Power of Attorney Seminar

 Sayreville Public Library Wills & Power of Attorney Seminar

October 30, 2023 at 6:30pm

 Open to the public. You do not need to be a resident.

SPEAKERS:

Kenneth Vercammen, Esq. Edison, (Author- ABA’s “Wills and Estate Administration book”)

2023 Main Topics:

1.   Administering the Estate/Probate /Surrogate

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.   Avoiding unnecessary expenses and saving your family money

WILLS & ESTATE ADMINISTRATION-PROTECT YOUR FAMILY AND MAKE PLANNING

This event is free & open to the public.

Registration at  __

 

For info, call  732.727.0212

Sayreville Library "Aziza Haque (Sayreville)"  ahaque@lmxac.org

1050 Washington Road

Parlin NJ 08859

FB __

 

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

Wills, Estate Planning & Probate Seminar

Sayreville Senior Center

Wills, Estate Planning & Probate Seminar

April 26 at 11:00am Free community program

423 Main St., Sayreville, NJ 08872

WILLS & ESTATE ADMINISTRATION-PROTECT YOUR

FAMILY AND MAKE PLANNING EASY

SPEAKER: Kenneth Vercammen, Esq. Edison, NJ (Author-Answers to Questions About Probate)

The NJ Probate Law made a number of substantial changes in Probate and the administration of estates and trusts in New Jersey.

Main Topics:

1. The New Probate Law and preparation of Wills

2. 2016 changes in Federal Estate and Gift Tax

3. NJ Estate Tax on estates over $675,000

4. Power of Attorney

5. Living Will

6. Administering the Estate/ Probate/Surrogate

7. Questions and Answer

COMPLIMENTARY MATERIAL: Brochures on Wills, Answers to

Questions about Probate and Administration of an Estate, Power of

Attorney, Living Wills, Real Estate Sales for Seniors, and Trusts.

Metuchen Library 480 Middlesex Ave, Metuchen, NJ 08840

(732) 632-8526

http://www.metuchenlibrary.org/

Free Will Seminars and Speakers Bureau for Groups

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.

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 dont 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; Selecting an executor, trustee, and guardian; Proper Will execution; Inheritance Taxes, Estate Taxes Living Will; Powers of Attorney; $13,000 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.

HELP YOUR MEMBERS LEARN THE LAW, PREVENT OR AVOID LEGAL

PROBLEMS

Chances are many of your members have been in a situation where they could benefited from legal advice. Have you ever been in an accident? Has a motor vehicle or criminal complaint ever been filed against you or a member of your family? Many individuals face these and other types of problems. Often people do not protect their rights, only to later face lengthy license suspensions or even jail for failure to resolve legal problems early on. Thats why Legal Rights Seminars are offered.

This means your members can get advice and possibly prevent legal problems before they occur. Most importantly, they can have peace of mind. Americans need an attorney when legal problems strike. As in the case of medical services, early treatment can prevent catastrophe and its attendant cost in time and money. For example, psychological studies have demonstrated that there is a direct correlation between legal problems and lost work time and productivity. Employees work performance often has a direct relationship to personal legal problems. Therefore, the sooner a solution can be found for the employees problems, the sooner employees can focus on their work.

In todays 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. For additional information on the Legal Seminars, contact our Coordinator, Kenneth Vercammens law office at (732) 572-0500, email VercammenLaw@njlaws.com

About the speaker: Kenneth A. Vercammen is a trial attorney in Edison, NJ. 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 is writing a book for the ABA on Wills and Estates.

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

www.CentralJerseyElderLaw.com

Wills & Power of Attorney Seminar for St. Thomas Seniors Old

 WHEN: Monday September 26, 2011 at 1:00 PM

WHERE: St Thomas The Apostle Parish

One St Thomas Plaza [off Route 18]

Old Bridge, NJ 08857

SPEAKER: Kenneth Vercammen, Esq. Edison, NJ

(Author- Answers to Questions About Probate)

The new NJ Probate Law made a number of substantial changes in Probate and the administration of estates and trusts in New Jersey.

Main Topics:

1. The New Probate Law and preparation of Wills

2. 2011 changes in Federal Estate and Gift Tax

3. NJ Inheritance taxes on estates over $675,000

4. Power of Attorney

5. Living Will

6. Administering the Estate/ Probate/Surrogate

7. Questions and Answer

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

Wills and Estate - in the Matter of the Estate of Sheldon Sommers (A-3417-08T3)

 SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO.  A- ASK  docket "Enter Docket Number"  * MERGEFORMAT 3417-08T33417-08T3

IN THE MATTER OF THE ESTATE

OF SHELDON SOMMERS, a/k/a

SHELDON CHARLES SOMMERS.   Deceased.

__________________________

Argued April 12, 2010 – Decided May 25, 2010

Before Judges Rodriguez, Reisner and Yannotti.

On appeal from the Superior Court of New Jersey, Chancery Division,  Probate Part, Bergen County, Docket No. P-175-07.

Matthew E. Moloshok argued the cause for appellant/cross-respondent The Estate of Sheldon Sommers (Hellring, Lindeman, Goldstein and Siegal, L.L.P., attorneys; Mr. Moloshok, Joel D. Siegal, and David N. Narciso, of counsel and on the brief).

Joseph B. Fiorenzo argued the cause for respondents/cross-appellants Mary Lee Sommers Gosz, Wendy Sommers and Julie Sommers Neuman (Sokol, Behot & Fiorenzo, attorneys; Mr. Fiorenzo, of counsel and on the brief; Steven Siegel, on the brief).

PER CURIAM

The Estate of Sheldon Sommers (estate) appeals from a February 4, 2009 final judgment entered in favor of the defendants, Mary Lee, Julie, and Wendy Sommers (the nieces).  The nieces cross-appeal from a portion of the order dismissing count one of the estates complaint without prejudice instead of with prejudice.  We affirm, substantially for the reasons stated in Judge Contillos comprehensive written opinion issued on January 22, 2009.

                                                            I

The facts and procedural history are addressed at length in Judge Contillos opinion, and need not be repeated here.  To summarize, this appeal concerns a long-running dispute between decedent Sheldon Sommers second wife Bernice, and his nieces, over his art collection.  Sheldon divorced Bernice in 1999.  During the divorce proceedings, he moved to Indiana where two of the nieces lived.  The other niece lived in Illinois.  The nieces were his closest living relatives, and he gifted his art collection to them. 

With the advice of tax counsel, Sheldon made the gift to his nieces through a complicated process undertaken to minimize the tax consequences of the gift.  An arbitration proceeding in Indiana, confirmed by that States highest court, determined that Sheldon made a valid irrevocable transfer of the art to a limited liability corporation (LLC) in December 2001, and thereafter, in December 2001 and January 2002, he made valid gifts to his nieces of his capital shares in the LLC.

At the time he made the gifts, the nieces were the primary beneficiaries of Sheldons estate plan.  That changed after he reconciled with Bernice.  On June 23, 2002, four months before his death at age eighty-six, Sheldon remarried Bernice while he was hospitalized in Indiana; he also made a new will in April 2002 naming her as his executrix.  He then sued the nieces in Indiana seeking the return of the artwork.  After he died, his estate, through Bernice as executrix, continued the lawsuit.  The litigation proceeded through arbitration, as required by the documents that created the LLC.

After losing in the Indiana arbitration, the estate, through Bernice, filed this lawsuit in New Jersey.  The suit did not allege that the gift resulted from undue influence or fraud,  issues decided adversely to the estate in the Indiana arbitration.  Instead, the estate sought to require the nieces to pay more than $500,000 in federal taxes which the Internal Revenue Service (IRS) had assessed against the estate based on the gift of the art.  In the alternative, the estate argued that if the nieces were unwilling to pay the taxes, the gift should be rescinded due to alleged mutual mistake or unilateral mistake.  Finally, the estate contended that the gift should be reformed so that the interest gifted would equal only the amount that would not require the estate to pay federal gift tax, and that the remaining interests should pass to Bernice under Sheldons will.[1]

In his opinion, Judge Contillo concluded that the estate had a full and fair opportunity to litigate the reformation, rescission, and other tax-related issues in the Indiana arbitration, and those issues were res judicata.  However, for completeness, he also addressed the merits of those claims and rejected them. Based on his assessment of the evidence, including witness credibility, Judge Contillo concluded that Sheldon knew exactly what he was doing in giving his nieces the artwork, and wanted them to have the artwork regardless of the possible tax consequences.  He found that the only promise the nieces made to Sheldon was that they would pay any gift taxes due on the 2002 portion of the gift.  He therefore found no basis to rescind or reform the gift.

In addressing count one of the complaint, seeking apportionment of estate tax liability between the nieces and the estate, the judge declined to apportion the taxes as the estate urged, because the IRS had "determined that the artwork is not part of the gross estate," and therefore it was not subject to apportionment under N.J.S.A. 3B:24-2.  He also considered his own determination that "Dr. Sommers[] gift of the artwork was complete and irrevocable in December 2001 and January 2002." However, the judge concluded that under N.J.S.A. 3B:24-1(a), an apportionment claim is not ripe until the estate taxes are quantified, and the Tax Court had not finally determined the amount of tax "due and payable by the fiduciary."  He therefore dismissed count one without prejudice.                    

II

On this appeal, the estate claims that the tax issues are not res judicata, because they could not have been litigated in the arbitration.  The estate also argues that the trial courts decision on the merits is against the weight of the evidence.

Addressing the evidentiary issue first, we must affirm the judges decision as long as it is supported by substantial credible evidence.  Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).  We owe particular deference to the trial judges credibility determinations.  Ibid.; Cesare v. Cesare, 154 N.J. 394, 411-12 (1998).  Having reviewed the record in light of that standard, we find no basis to disturb the judges detailed factual findings.  There is substantial evidence that Sheldon was aware that the artwork was potentially worth over $3 million and that the gift to his nieces might generate tax consequences despite his efforts to avoid them.  Nonetheless, he decided to make the gift because he wanted the nieces to have the artwork.  We agree with Judge Contillo that there was no basis to undo the gift or change its terms, including the amounts gifted each year.  The estates appellate contentions  warrant no further  discussion  here.  R. 2:11-3(e)(1)(E).

Based on our reading of the Indiana arbitrators decision, and the record in this case, it is clear to us that the estate has now had two chances to litigate the critical issues, including whether Sheldon made an irrevocable gift to his nieces.  Both forums decided that he intended to finally and irrevocably transfer ownership of the art to his nieces regardless of the possible tax consequences.  Because the merits were fully litigated in this action, and Judge Contillos decision on the merits is supported by the evidence, we need not address the judges alternate conclusion that the estates claims were barred by estoppel. 

We further find no error in the trial judges decision to dismiss the apportionment count of the estates complaint without prejudice.  He determined that under N.J.S.A. 3B:24-1(a), the issue would not be ripe until the Tax Court decides how much, if any, of the additional taxes the estate owes the IRS.  See Hale v. Leeds, 28 N.J. 277, 286-88 (1958).  We do not, however, read his decision as entitling the estate to later relitigate in this States courts the issues of fact and law that were decided in this case, including the determination that Sheldon irrevocably gifted the art to his nieces in December 2001 and January 2002.

Affirmed

[1]At the time this appeal was argued, the estate was contesting the tax assessment in the United States Tax Court.  The tax appeal included a challenge to the valuation of the art.  If the estate persuades the Tax Court that the estate does not owe additional taxes, that would moot any further dispute over who should pay those taxes.

Wills and Estate Administration - Save Money and Provide for Your Loved Ones

Wills & Estate Administration

SAVE MONEY AND PROVIDE FOR YOUR LOVED ONES

As average Americans, we work 80,000 hours in a lifetime, or 45 to 55 years. In spite of all the resources and assets we earn, the vast majority of us do not take the time to create a will.

National statistics indicate that 80% of Americans die without leaving a will. There are several reasons for this: fear of death; procrastination; and misinformation (people presume that only the rich need to have wills). Whatever the excuse, it is clear that people would benefit from having a will.

In the absence of a will or other legal arrangement to distribute property at death, the state must step in to administer the estate. The result can be lengthy delays before the rightful heirs receive their property. And because the state has no instructions from the deceased, no charitable gifts will be made.

IF YOU HAVE NO WILL:

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

* State law determines who gets assets, not you * Additional expenses will be incurred and extra work will be required to qualify an administrator * Judge determines who gets custody of your children * Possible additional State inheritance taxes and Federal estate taxes * If you have no spouse or close relatives the State may take your property * The procedure to distribute assets becomes more complicated-and the law makes no exceptions for persons in unusual need or for your own wishes. * 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. Careful estate planning helps take care of that.

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

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.

SAVE MONEY

Your estate will be subject to probate whether or not you have a Will and in most cases, a Will reduces the cost by eliminating the requirements of a bond. With a well-drawn Will, you may also reduce death taxes and other expenses. Dont pinch pennies now to the detriment of your beneficiaries. We have attempted to briefly explain in this article some of the issues, techniques, and decisions involved in Wills, Estate Planning, and Administration of an Estate. Because the matters covered are complicated and the Federal and New Jersey laws frequently change, this article can only outline some of the many legal issues you should consider.

The proper preparation of a Will should involve a careful analysis of the clients assets, family and his/her desires. Estate Planning is the process of examining what will happen to your property when you die and arranging for its distribution in such a manner as will accomplish your objectives. The cost of a Will depends on the size and the complexity of the estate and the plans of the person who makes the Will.

A properly drawn Simple Will without Trust costs approximately $100.00 to $500.00. It is one of the most important documents you will ever sign, and may be one of the best bargains you will ever have. Be sure your Will takes into account the 1997 Federal Tax changes and all New Jersey Inheritance Tax changes. Also, ascertain if your Will is “self-proving”, which would dispense with having to find the Willís witnesses after death.

WHAT IS A WILL?

“A Will is a Legal written document which, after your death, directs how your individually owned property will be distributed, who will be in charge of your property until it is distributed and who will take care of your minor children if the other parent should die . You should remember that the term “property” under the law includes real estate as well as other possessions and rights to receive money or items of value.” Everyone who has at least $3,000 in assets should have a Will. You do not have to be wealthy, married, or near death to do some serious thinking about your Will.

ADMINISTRATION OF AN ESTATE

If you are named the executor or executrix, you must visit the County Surrogate to probate the Will. You will need the following items: 1. The Death Certificate 2. The Original Will 3. Names and Addresses of decedents, next of kin and will beneficiaries 4. Minimum of $80.00 for Surrogate fees

A state inheritance tax return must be filed and the tax paid on the transfer of real or personal property within eight months after death.

OTHER ITEMS OF CONCERN TO BE PREPARED BY YOUR ATTORNEY -Trusts (and Medicare Trusts) -Power of Attorney- to allow a trusted person to administer your assets during your lifetime, either upon disability or now -Living Wills- to state your wishes concerning medical care in the event of your serious illness

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