Probate
Contests
Do
you think youre entitled to money or might be entitled to money from an estate
or trust? Do you believe that someone is unfairly claiming money or property
that is rightfully yours? Has The Executor of Administrator of the Estate not
done their job? If so, and you are a prospective plaintiff or defendant, then
you may need an attorney to protect your rights.
Executor
Duties and Responsibilities
At
some point in time, you may be asked to serve as the executor of the estate of
a relative or friend, or you may ask someone to serve as your executor. An
executors job comes with many legal obligations. Under certain circumstances,
an executor can even be held personally liable for unpaid estate taxes. Lets
review the major duties involved, which weve set out below.
In
General, the executors 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).
Lets
take a look at some of the specific steps involved and what these
responsibilities can mean. Chronological order of the various duties may vary.
Step
1: 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 courts 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.
Step
2: 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.
Step
3: 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 estates income tax return (both federal and
state), the federal estate-tax return, the state death tax return (estate
and/or inheritance), and the deceaseds final income tax return (federal and
state). Taxes usually must be paid before other debts. In many 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.
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 estates behalf.
Often
it is necessary to hire an appraiser to value certain assets of the estate,
such as a business, pension, or real estate, since estate taxes are based on
the fair market value of the assets. After the filing of the returns and
payment of taxes, the Internal Revenue Service will generally send some type of
estate closing letter accepting the return. Occasionally, the return will be
audited.
Step
4: Pay the Debts. The claims of the estates 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.
Step
5: Distribute the Assets. After all debts and expenses have been paid, the
distribute the assets with extra attention and meticulous bookkeeping by the
executor. Frequently, beneficiaries can receive partial distributions of their
inheritance without having to wait for the closing of the estate.
WHO
SHOULD SERVE AS EXECUTOR? The executors legally imposed fiduciary duty is to
act in all ways in the best interests of the estate and its beneficiaries. The
duties of an executor can be difficult and challenging and should not be taken
lightly.
We
believe an executor needs not only the skills, training, and experience
necessary to do the project--casual or part-time attention is not likely to
achieve success.
Under
increasingly complex laws and rulings, particularly with respect to taxes, an
executor can be in charge for two or three years before the estate
administration is completed. If the job is to be done without unnecessary cost
and without causing undue hardship and delay for the beneficiaries of the
estate, the executor should have an understanding of the many problems involved
and an organization created for settling estates. In short, an executor should
have experience.
FILING
SUIT IN AN ESTATE CONTEST
RULE
4:84. COMPLAINTS IN CASES IN WHICH SURROGATES COURT NOT ABLE TO ACT
4:84-1.
In General
In
any case in which, under R. 4:82, the Surrogates Court may not act, any person
in interest may file a complaint and apply for an order directed to all other
interested parties to show cause why the relief sought should not be granted.
Service shall be as provided by R. 4:67-3.
4:84-2.
Probate in the Superior Court
If
a will is sought to be proved in the Superior Court, proceedings for discovery
shall be available pursuant to R. 4:10, R. 4:12 to 4:19 inclusive, R. 4:21 and
R. 4:23. On the taking of a deposition, a photocopy of the will shall be marked
for identification by the person before whom the deposition is taken. If the
will is admitted to probate, the judgment of the Superior Court shall direct
that the will be filed with and recorded by the Surrogates Court. Letters of
appointment shall then be issued by the Surrogates Court.
4:84-3.
Contested Administration
Where
administration of an estate has been contested, the judgment of the Superior
Court granting administration shall direct issuance and recording of letters of
administration by the Surrogates Court.
4:84-4.
Appointment of Substituted Trustees
An
action for the appointment of a substituted trustee (a trustee not named in the
trust document) of an inter vivos or testamentary trust shall be brought
pursuant to R. 4:83. The complaint shall have attached a copy of the trust
instrument and the acceptance by the person or persons seeking the appointment.
The order to show cause shall be served upon all persons having an interest in
the trust, vested or contingent, except as otherwise provided by R. 4:26-3
(virtual representation), and upon any trustees then serving. The judgment
shall direct the issuance by the Surrogates Court of letters of trusteeship.
4:84-5.
Appointment of Administrator Pendente Lite or Other Limited Administrator
No
order appointing an administrator pendente lite or other limited administrator
shall be entered by the Superior Court without either notice to the persons in
interest or their written consent, unless it clearly appears from specific
facts shown by affidavit or by the verified complaint that immediate and
irreparable damage will result before notice can be served and a hearing had
thereon. If an order is granted without notice, it shall give any person in
interest leave to move for the discharge of the administrator on no more than 2
days notice. This rule shall not apply to the administrator ad prosequendum in
an action for wrongful death.
RULE
4:85. REVIEW BY SUPERIOR COURT OF ACTIONS BY SURROGATES COURT: GENERAL
PROVISIONS
4:85-1.
Complaint; Time for Filing
If
a will has been probated by the Surrogates Court or letters testamentary or of
administration, guardianship or trusteeship have been issued, any person
aggrieved by that action may, upon the filing of a complaint setting forth the
basis for the relief sought, obtain an order requiring the personal representative,
guardian or trustee to show cause why the probate should not be set aside or
modified or the grant of letters of appointment vacated, provided, however, the
complaint is filed within four months after probate or of the grant of letters
of appointment, as the case may be, or if the aggrieved person resided outside
this State at the time of the grant of probate or grant of letters, within six
months thereafter. If relief, however, is sought based upon R. 4:50-1(d), (e)
or (f) or R. 4:50-3 (fraud upon the court) the complaint shall be filed within
a reasonable time under the circumstances. The complaint and order to show
cause shall be served as provided by R. 4:67-3. Other persons in interest may,
on their own motion, apply to intervene in the action.
4:85-2.
Enlargement of Time
The
time periods prescribed by R. 4:85-1 may be extended for a period not exceeding
30 days by order of the court upon a showing of good cause and the absence of
prejudice.
4:85-3.
After-Discovered Will
(a)
Order to Show Cause. Where administration has been granted and subsequently a
will is offered for probate or where probate of a will has been granted and
subsequently a later will is offered for probate, the person offering such will
may, upon the filing of a complaint, move without notice for an order requiring
all interested persons to show cause why probate of such will should not be
granted. The complaint shall be filed in the county where the original
administration or probate was granted. If, on the return date or thereafter,
new probate is granted, the court shall require the administrator or prior
executor to make final settlement of his or her account and thereafter shall
make such order respecting commissions as is appropriate.
(b)
Probate by Surrogate. If, on the return date of the order to show cause, there
is no objection to the offering of the after-discovered will for probate, the
Surrogate may enter an order that it be lodged for probate and thereafter
proceed with probate unless a caveat has been filed or doubt arises from the
face of the will.
KENNETH
VERCAMMEN, ESQ.
RECENT
SPEAKING ENGAGEMENTS ON WILLS, ELDER LAW, AND PROBATE Edison Adult School
-Wills, Elder Law & Probate- 2011, 2007, 2006, 2005, 2004, 2003, 2002,
2001, 2000,1999,1998,1997 Old Bridge AARP 2002; Guardian Angeles/ Edison 2002;
St. Cecelia/ Woodbridge Seniors 2002; Temple Beth Or 2002; -Linden AARP 2002
Woodbridge Housing 2001; Chelsea/ East Brunswick 2001, Village Court/ Edison
2001; Old Bridge Rotary 2001; Sacred Heart/ South Amboy 2001; Livingston Manor/
New Brunswick 2001 -Wills and Estate Administration - Woodbridge Adult School
2001, 2000,1999,1998,1997,1996 -Wills and Elder Law - Metuchen Adult School
1999,1997,1996,1995,1994,1993 -Clara Barton Senior Citizens- Wills & Elder
Law-Edison 2002, 1995 -AARP Participating Attorney in Legal Plan for NJ AARP
members -Senior Legal Points University of Medicine & Dentistry UMDNJ &
St. Peters-2000, 1999,1998 -East Brunswick AARP Wills 2001 -Iselin/ Woodbridge
AARP Wills 2000 -Metuchen Reformed Church; Franklin/ Somerset/ Quailbrook
Seniors 2001 -North Brunswick Senior Day 2001 -Wills, Elder Law and
Probate-South Brunswick Adult School 1999,1997,1993 -Wills and Estate
Planning-Old Bridge Adult School 1998,1997,1995 -Senior Citizen Law-Perth Amboy
YMHA 1995 -Wills, Living Wills and Probate-Spotswood Community School
1995,1994,1993 -Wills and Probate-Sayreville Adult School 1997, 1996,1995,1994
-Living Wills-New Jersey State Bar Foundation and St. Demetrius, Carteret 1994
-Wills and Estate Planning-Edison Elks and Senior Citizens January 1994 -Legal
Questions Clinic Metuchen Adult School March 1995,1994,1993 -Estate Planning to
Protect Families-Metuchen Chamber of Commerce April 1993 -Living Wills-Dean
Witter and Nordstroms, Menlo Park Mall October 1992; Trusts and Living
Wills-Dean Witter, Metro Park, June 1992; Estate Planning-North Brunswick
Republican Club May 1992; -Wills and Power of Attorney 1991 Edison Democratic
Association
New
Jersey State Bar Association -General Practice Section-Board of Directors 1995-
Present
ADJUNCT
PROFESSOR Middlesex County College Edison, NJ February, 2001-April, 2001; Jan.
1990-May, 1991
New
Jersey Superior Court - Certified Mediator 1997- New Jersey Supreme Court
Committee on Municipal Court Education: Appointed by Chief Justice Robert N.
Wilentz 1990 - 1997
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