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

Tuesday, June 3, 2025

In Re Bennett 180 N.J. Super. 406 (1981) 434 A.2d 1155 IN THE MATTER OF ALICE BENNETT, AN ALLEGED MENTAL INCOMPETENT.

 In Re Bennett   180 N.J. Super. 406 (1981)  434 A.2d 1155  IN THE MATTER OF ALICE BENNETT, AN ALLEGED MENTAL INCOMPETENT.

Superior Court of New Jersey, Law Division Probate Part, Monmouth County.

Decided February 23, 1981.

*407 Priscilla Feagles Koch, for plaintiff (Protective Services for the Elderly, attorneys).

Lawrence M. Lawson, for movant Harold Bennett.

James J. Cleary, guardian ad litem (Yacker, Granata & Cleary, attorneys).

YACCARINO, J.S.C.

This matter came before the court on a notice of motion for an order vacating the judgment of incompetency of Alice Bennett *408 on the grounds that this court is without jurisdiction to grant such an order by reason of plaintiff's lack of standing.

The material facts may be stated as follows:

On August 29, 1980 plaintiff Protective Services for the Elderly, located at 191 Bath Avenue, Long Branch, New Jersey, filed a complaint seeking to have Alice Bennett declared incompetent as a result of unsoundness of mind. Plaintiff also sought the appointment of a guardian of her person and property.

Plaintiff alleged that it had an interest in the action by reason of its status as an agency funded from the Office on Aging through Family and Children's Services to protect the frail elderly in Monmouth County who are in need of crisis intervention. Plaintiff's involvement stemmed from a request by the Monmouth County Board of Social Services, Freehold, New Jersey, to provide protective services to Alice Bennett, who had been found wandering in the streets of Belmar, New Jersey.

Pursuant to statute and court rule, this court conducted an incompetency hearing and, upon the basis of the testimony of Dr. Carlos A. Perosio and Alice Bennett, declared her to be incompetent.

Alice Bennett is 82 years old. She has two grandsons, the movant Harold Bennett and Francis Broda, and a niece Barbara Chase.

Neither the present statute, N.J.S.A. 3A:6-35, nor the applicable court rule, R. 4:83-1 et seq., defines standing. The answer lies in history.

The authority of the early Chancellor in England to conduct proceedings of this kind did not exist by virtue of his office or as part of his general extraordinary jurisdiction. The power was derived by special authority from the sovereign in whom, as parens patriae, the care of idiots and lunatics was vested. Bispham's Principles of Equity (6 ed. 1899), 677; 4 Pomeroy's Equity Jurisprudence (5 ed. 1941), § 1311 at 883. The King delegated his authority over such persons to the Chancellor by *409 means of an official instrument called a "sign manual." Bispham, supra; Pomeroy, supra. Originally the effect of the delegation was merely to give the Chancellor the power to grant the custody of the lunatic, "but after the Court of Chancery became well established, successive holders of the great seal imported into the exercise of their special jurisdiction under the sign manual all the powers which they wielded as chiefs of the Court of Chancery" (emphasis supplied). Bispham, supra. See, also, 4 Pomeroy, supra, § 1312 at 884: "The proceedings in which this jurisdiction is exercised (in England) are substantially as follows: Some friend of the alleged lunatic addresses a petition to the Chancellor personally, or other judge in lunacy...." (Emphasis supplied.)

On November 21, 1794 the people of this State granted the administration over lunatics to the Chancellor, who was at that time also the Governor. Paterson's Laws 125. The act provided that the Chancellor should have the care of idiots and lunatics and provided for the safekeeping of them and their lands and tenements, goods and chattels, that they and their households might be supported, that no waste or destruction should come to their property, and that in case of their recovery their estates should be restored to them; otherwise at their deaths should go to their heirs or next of kin. Subsequent revisions and codifications conferred jurisdiction in the Court of Chancery.

Although no such language exists in the present statute, as early as 1820 our statutes specified that the practice in incompetency proceedings would be "as heretofore." The prior statute, R.S. 3:7-35, provided that "except as otherwise provided by law, the question whether a person is a mental incompetent shall be determined by an inquest upon a commission to be issued out of the Court of Chancery and returnable thereto, and proceedings thereon shall be as heretofore practiced in proceedings de lunatico inquirendo and in the nature of de lunatico inquirendo."

The reference to "as heretofore practiced" is doubtless that which existed in the Court of Chancery of England. Comfort's Case, 66 N.J. Eq. 6, 7 (Ch. 1904).

*410 Notwithstanding In re Tierney, 175 N.J. Super. 614 (Law Div. 1980), affirmed 177 N.J. Super. 245 (App.Div. 1981); In re Schiller, 148 N.J. Super. 168 (Ch.Div. 1977) and In re Oswald, 132 N.J. Eq. 325 (Ch. 1942), to the contrary, the practice in England did not limit standing to relatives and creditors of the alleged incompetent. This court, as a court of equal jurisdiction, is not bound by the holdings of the above noted decisions. Further, having found no appellate division decision addressing this issue, this court now holds as a matter of law that there are no special rules of standing governing incompetency proceedings. General principles of standing therefore apply.

It cannot be disputed that New Jersey courts will not entertain proceedings by plaintiffs who are "mere intermeddlers" (Baxter v. Baxter, 43 N.J. Eq. 82, 86 (Ch. 1887), aff'd 44 N.J. Eq. 298 (E. & A. 1888), or are merely interlopers or strangers to the dispute (Bergen Cty. v. Port of New York Auth., 32 N.J. 303, 307, 318 (1960)). Our courts have confined litigation to those situations where the litigants' concern with the subject matter evidenced a sufficient stake with real adverseness. Crescent Park Tenants Ass'n v. Realty Eq. Corp. of N.Y., 58 N.J. 98, 107 (1971). Due weight is given to the interests of individual justice, along with the public interest, always bearing in mind that throughout our law we have been sweepingly rejecting procedural frustrations in favor of just and expeditious determinations on the ultimate merits. Crescent Park, supra, citing Tumarkin v. Friedman, 17 N.J. Super. 20, 21 (App.Div. 1951), certif. den. 9 N.J. 287 (1952); Handelman v. Handelman, 17 N.J. 1, 10-11 (1954). Thus a plaintiff's particular interest in the litigation in certain circumstances need not be the sole determinant of standing. N.J. Chamber of Commerce v. N.J. Elec. Law Enforcem. Comm'n, 82 N.J. 57, 68 (1980). That interest may be accorded proportionately less significance when it coincides with a strong public interest. Id., citing Elizabeth Federal S. & L. Ass'n v. Howell, 24 N.J. 488, 499 (1957).

The increasing interest and awareness by the public and all levels of government in problems faced by the elderly cannot be *411 disputed. Agencies have been created and funds for assistance made available.

The Court of Chancery also has constitutional jurisdiction over the subject matter by virtue of N.J.Const. (1947) Art. VI, § III, par. 2, and the November 7, 1978 amendment thereto. The constitutional amendment adopted by general election abolishes the County Courts and provides for the transfer of their jurisdiction, powers, functions and duties, and provides in pertinent part: "Until otherwise provided by law, ... all surrogates shall become clerks of the Chancery Division (Probate Part)...." (emphasis supplied). By its very language the amendment makes clear that only an act of the Legislature can alter the status of the surrogate as a clerk of the Chancery Division.

Notwithstanding the specific language of the amendment and the failure of any legislative action, our Supreme Court created a new court by amending the court rules to refer to the Law Division, Probate Part. This rule does not and cannot diminish the jurisdiction of this court.

The plebiscite clearly mandates, and the amendment clearly envisions, the transfer of function of the Probate Court to the Chancery Court. There having always existed a Probate Part of the Chancery Division, the effect of the amendment was to centralize the functions and jurisdiction in the Chancery Division of the Superior Court.

Matters cognizable in Chancery are subject to the full panoply of equitable principles. The Legislature, which is the only body constitutionally authorized to assign probate to any court other than the Chancery Division, has not acted but has by its inaction permitted the exclusive jurisdiction of probate matters to be vested.

Since Probate is now exclusively a division of the Chancery Court, the constraints imposed by prior practice, if any, no longer apply. The doctrine of parens patriae, which vests this court with inherent powers over those incapable of protecting themselves, is now applicable in all its glory to incompetency proceedings.

*412 The movant argues that notwithstanding all of the above, this court may not act because Protective Services for the Elderly lacks standing to maintain this action. However, it is axiomatic that equity never permits a rigid principle of law to smother the factual realities to which it is sought to be applied. In equity you cannot tune out the relevant static and undertones. Equity adapts its relief to the requirements of a particular case. Grieco v. Grieco, 38 N.J. Super. 593, 598 (App.Div. 1956).

Additionally,

It is a universal rule of equity that where a person is not equal to protecting himself in a particular case, the court will protect him. As part of the inherent power of equity, a court of equity has full and complete jurisdiction over the persons of those who labor under any legal disability and also over their property. While the general control over such persons has very generally been transferred by statute to probate courts, it does not follow, unless the equity court has been definitely shorn of power, that equity jurisdiction thereover may no longer be exercised. Where legal disability of the individual is shown, the jurisdiction of the court is plenary and potent to afford whatever relief may be necessary to protect his interests and preserve his estates. The court's action in such a case is not limited by any narrow bounds, but it is empowered to stretch forth its arm in whatever direction its aid and protection may be needed. While this is indeed a special exercise of equity jurisdiction, it is beyond question that by virtue thereof the court may pass upon purely personal rights. [27 Am.Jur.2d, Equity, § 69 at 592 (1966).]

Far from divesting this court of power, the constitutional amendment places the Surrogate under the aegis of the Chancery Division and reinforces this court's inherent powers.

The people and the Legislature of this State have spoken. The court has been authorized to act. The days when a court of equity could only act on a command from a king have long since passed. There is no king to whom a person can apply for a sign manual. The Governor no longer acts as judge and Chancellor. The powers previously vested in the King and Governor have been inherited by this court. Thus, the Court of Chancery shall decide who has standing and who may institute incompetency proceedings. The court stands ready, willing and able to protect all people in accordance with the safeguards inherent in R. 4:83-1 et seq. The complaint for incompetency must be supported by affidavits of two qualified, reputable physicians, based *413 on a personal examination of the alleged incompetent not more than 20 days prior to the filing of the complaint. R. 4:83-2. Notice must be given to certain relatives and other interested persons. R. 4:83-4. If the alleged incompetent fails to appear at the hearing or appears without counsel, the court is required to adjourn the hearing and appoint counsel. R. 4:83-4. The alleged incompetent has a right to a jury trial upon demand. The determination of the issue of incompetency is made after taking testimony in open court. R. 4:83-6.

Additionally, guardians are required to post security. Thus, all of the reasons which previously existed for the requirement of standing are no longer viable, and it serves no beneficial purpose for judges in 1981 to quote principles enumerated by judges of prior centuries relevant to their circumstances but no longer applicable.

The court therefore holds that not only may the Protective Services for the Elderly petition this court, but any person may petition this court for the appointment of a guardian in the declaration of incompetency, because this court stands between the alleged incompetent and the person petitioning for the declaration, and stands ready to protect the incompetent to the end of time.

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

3B :12-24.1 Determination by the court of need for guardianship services, specific services.

    3B :12-24.1 Determination by the court of need for guardianship services, specific services.

12. Determination by the court of need for guardianship services, specific services.

 
   a.   General Guardian. If the court finds that an individual is incapacitated as defined in N.J.S.3B:1-2 and is without capacity to govern himself or manage his affairs, the court may appoint a general guardian who shall exercise all rights and powers of the incapacitated person. The general guardian of the estate shall furnish a bond conditioned as required by the provisions of N.J.S.3B:15-1 et seq., unless the guardian is relieved from doing so by the court.
 
   b.   Limited Guardian. If the court finds that an individual is incapacitated and lacks the capacity to do some, but not all, of the tasks necessary to care for himself, the court may appoint a limited guardian of the person, limited guardian of the estate, or limited guardian of both the person and estate. A court, when establishing a limited guardianship shall make specific findings regarding the individual's capacity, including, but not limited to which areas, such as residential, educational, medical, legal, vocational and financial decision making, the incapacitated person retains sufficient capacity to manage. A judgment of limited guardianship may specify the limitations upon the authority of the guardian or alternatively the areas of decision making retained by the person. The limited guardian of the estate shall furnish a bond in accordance with the provisions of N.J.S.3B:15-1 et seq., unless the guardian is relieved from doing so by the court.
 
   c.   Pendente lite; Temporary Guardian. 
 
   (1)   Whenever a complaint is filed in the Superior Court to declare a person incapacitated and appoint a guardian, the complaint may also request the appointment of a temporary guardian of the person or estate, or both, pendente lite. Notice of a pendente lite temporary guardian application shall be given to the alleged incapacitated person or alleged incapacitated person's attorney or the attorney appointed by the court to represent the alleged incapacitated person.
 
   (2)    Pending a hearing for the appointment of a guardian, the court may for good cause shown and upon a finding that there is a critical need or risk of substantial harm, including, but not limited to: 
 
   (a)   the physical or mental health, safety and well-being of the person may be harmed or jeopardized;
 
   (b)   the property or business affairs of the person may be repossessed, wasted, misappropriated, dissipated, lost, damaged or diminished or not appropriately managed; 
 
   (c)   it is in the best interest of the alleged incapacitated person to have a temporary guardian appointed and such may be dealt with before the hearing to determine incapacity can be held, after any notice as the court shall direct, appoint a temporary guardian pendente lite of the person or estate, or both, of the alleged incapacitated person. 
 
   (3)   A pendente lite temporary guardian appointed pursuant to this section may be granted authority to arrange interim financial, social, medical or mental health services or temporary accommodations for the alleged incapacitated person determined to be necessary to deal with critical needs of or risk of substantial harm to the alleged incapacitated person or the alleged incapacitated person's property or assets. The pendente lite temporary guardian may be authorized to make arrangements for payment for such services from the estate of the alleged incapacitated person. 
 
   (4)   A pendente lite temporary guardian appointed hereunder shall be limited to act for the alleged incapacitated person only for those services determined by the court to be necessary to deal with critical needs or risk of substantial harm to the alleged incapacitated person.
 
   (5)   The alleged incapacitated person's attorney or attorney appointed by the court to represent the alleged incapacitated person shall be given notice of the appointment of the pendente lite temporary guardian. The pendente lite temporary guardian shall communicate all actions taken on behalf of the alleged incapacitated individual to the alleged incapacitated person's attorney or attorney appointed by the court to represent the alleged incapacitated person who shall have the right to object to such actions.
 
   (6)   A pendente lite temporary guardian appointment shall not have the effect of an adjudication of incapacity or effect of limitation on the legal rights of the individual other than those specified in the court order.
 
   (7)   If the court enters an order appointing a pendente lite temporary guardian without notice, the alleged incapacitated person may appear and move for its dissolution or modification on two days' notice to the plaintiff and to the temporary guardian or on such shorter notice as the court prescribes.
 
   (8)   Every order appointing a pendente lite temporary guardian granted without notice expires as prescribed by the court, but within a period of not more than 45 days, unless within that time the court extends it for good cause shown for the same period.
 
   (9)   The pendente lite temporary guardian, upon application to the court, shall be entitled to receive reasonable fees for his services, as well as reimbursement of his reasonable expenses, which shall be payable by the estate of the alleged incapacitated person or minor.
 
   (10) The pendente lite temporary guardian shall furnish a bond in accordance with the provisions of N.J.S.3B:15-1 et seq., unless the guardian is relieved from doing so by the court.
 
   d.   Disclosure of information. Physicians and psychologists licensed by the State are authorized to disclose medical information, including but not limited to medical, mental health and substance use disorder information as permitted by State and federal law, regarding the alleged incapacitated person in affidavits filed pursuant to the Rules Governing the Courts of the State of New Jersey.
 
   e.   Court appearance. The alleged incapacitated person shall appear in court unless the plaintiff and the court-appointed attorney certify that the alleged incapacitated person is unable to appear because of physical or mental incapacity.
 
   f.   Communication. When a person who is allegedly in need of guardianship services appears to have a receptive or expressive communication deficit, all reasonable means of communication with the person shall be attempted for the purposes of this section, including written, spoken, sign or non-formal language, which includes translation of the person's spoken or written word when the person is unable to communicate in English, and the use of adaptive equipment.
 
   g.   Additional subject areas. At the request of the limited guardian, and if the incapacitated person is not represented, after appointment of an attorney for the incapacitated person and with notice to all interested parties, the court may determine that a person is in need of guardian services regarding additional subject areas and may enlarge the powers of the guardian to protect the person from significant harm.
 
   h.   Limitations of guardian powers. At the request of the guardian, the incapacitated person or another interested person, and if the incapacitated person is not represented, after appointment of an attorney for the incapacitated person and with notice to all interested parties, the court may limit the powers conferred upon a guardian.

   L.2005, c.304, s.12; amended 2023, c.177, s.13.

Thursday, May 8, 2025

Annual Update Wills and Estate Planning Free Workshop & Seminar in person in Edison Law Office and Facebook Live

 Annual Update Wills and Estate Planning Free Workshop & Seminar in person in Edison Law Office and Facebook Live

 

on June 25, 2025 from 12:30-1:30 pm   Live in Vercammen Law Office

Wednesday.

https://www.facebook.com/events/1766175414320971

 

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

 

Law Office of Kenneth Vercammen, 

2053 Woodbridge Ave, Edison, NJ 08817  

   The “In office” program is limited to 9 people.  Free sandwiches and snacks for past clients

 

      COST: Free for in person if you pre-register by email. Complimentary materials provided at 12:15 sharp. Please bring a canned food donation, which will be given to the St. Matthews’s St. Vincent DePaul Food Bank.  

Main Topics:

1.   What’s new in 2025

2.   Administering the Estate/Probate /Surrogate

3.   Dangers If You Have No Will or documents invalid

4.   Getting your Estate Planning Documents done without driving to law office

5.   What goes into a Will

6.   Power of Attorneys recommendations

7.   Living Will & Advance Directive for Medical Care

8.   Avoiding unnecessary expenses and saving your family money

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

   SPEAKER: Kenneth Vercammen, Esq.                 

(Author- ABA Wills and Estate Administration)

      COMPLIMENTARY MATERIAL: Brochures on Wills, Probate and Administration of an Estate, Power of Attorney, Living Wills, Elder Law, and Trusts.   

 

          Co-Sponsor: Middlesex County Estate Planning Council

To attend in person email VercammenLaw@Njlaws.com

Other Information call 732-572-0500

 

 

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

 

  Free Will Seminars and Speakers Bureau for Groups

SPEAKERS BUREAU

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

 

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

Details on free programs available

 

     These quality daytime educational programs will educate and even entertain. Clubs and companies are invited to schedule a free seminar. The following Seminars are now available: 

1. WILLS & ESTATE ADMINISTRATION-PROTECT YOUR FAMILY AND 

MAKE PLANNING EASY 

2. POWER OF ATTORNEY to permit family to pay your bills if you are temporarily disabled and permit doctors to talk with family 

       All instructors are licensed attorneys who have been in practice at least 25 years. All instructors are members of the American Bar Association, New Jersey 

State Bar Association, and Middlesex County Bar Association. All programs include free written materials. 

 

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

 

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

 

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

 

SPEAKERS BUREAU 

 

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

 

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

 

About the speaker: Kenneth A. Vercammen is a trial attorney in Edison, NJ. We is the author of the American Bar Association’s book “Wills and Estate Administration”

He is co-chair of the ABA Probate & Estate Planning Law Committee of the American Bar Association Solo Small Firm Division.  He is a speaker for the NJ State Bar Association at the annual Nuts & Bolts of Elder Law & Estate Administration program. 

He was Editor of the ABA Estate Planning Probate Committee Newsletter. Mr. Vercammen has published over 150 legal articles in national and New Jersey publications on litigation, elder law, probate and trial topics. He is a highly regarded lecturer on litigation and probate law for the American Bar Association, NJ ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published in noted publications included New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer. He established the NJlaws website www.njlaws.com which includes many articles on Estate Planning, Probate and Wills. He is a member of the AARP and often lectures to groups on the importance of an up to date Will, Power of Attorney and Living Will.

 KENNETH  VERCAMMEN & ASSOCIATES, PC

ATTORNEY AT LAW

2053 Woodbridge Ave.

Edison, NJ 08817

(Phone) 732-572-0500

 (Fax)    732-572-0030

www.njlaws.com

 

   Kenneth Vercammen is author of the 

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ABA’s new book “Wills and Estate Administration”

Straightforward and to-the-point, Wills and Estate Administration provides step-by-step guidance that firms can use to handle all aspects of an estates practice, from initial client intake to closing the file. Topics are defined in six parts for ease of use:

   Preparation for Wills/Estate Planning Interviews

   Interviewing Clients

   Additional Estate Planning Issues

   Estate Administration

   Guardianship of Disabled or Incompetent Parents

   Marketing Your Wills and Estate Administration Practice

     Making this an essential resource for solo and small firm practitioners, the author includes numerous forms for each topic, and they are also available for download online. The book is basic and written to help new and transitional attorneys. In addition, tips on practice management will help seasoned attorneys.

 

Author: Kenneth A Vercammen Edison, NJ

Sponsor: Solo, Small Firm and General Practice Division

Publisher: ABA Book Publishing

   List Price: $79.95

ABA Price: $69.95

ISBN: 978-1-63425-380-2

Product Code: 5150484

2015, 290 pages, 7 x 10, Paperback

http://shop.americanbar.org/eBus/Store/ProductDetails.aspx?productId=224827061

ABA Service Hotline 800-285-2221 312-988-5000

Wednesday, May 7, 2025

Edison Senior Center Wills, Estate Planning & Probate Seminar Presentation June 11, 2025 11am-11:30

 Edison Senior Center

Wills, Estate Planning & Probate Seminar Presentation 

June 11, 2025 11am-11:30

 

   Edison Senior Center      

2963 Woodbridge Ave, 

Edison, NJ 08837

Join the Edison Seniors to attend.

 

Main Topics:

 

1.   What’s new in 2025

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

 

Speaker: Kenneth Vercammen, Esq. Edison, NJ (Author-Wills and Estate Administration by the ABA)

 

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

 

Info contact 

<JWeimer@edisonnj.gov>

Senior Center Supervisor

Township of Edison

2963 Woodbridge Ave, Edison NJ 08837

  732-248-7346

 

 

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

 

 

 

COMPLIMENTARY MATERIAL: Brochure on Wills, “Answers to Questions about Probate” and Administration of an Estate, Power of Attorney, Living Wills, Elder Law, and Trust. 

 

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.


Sunday, January 5, 2025

What is L8 Inheritance form: Form L-8 (Affidavit & Self-Executing Waiver)

  

L8 Inheritance form: Form L-8 (Affidavit & Self-Executing Waiver) This form may be used in most cases to transfer bank accounts, stocks, bonds and brokerage accounts, when the transfer or release is to a Class "A" beneficiary. You must file this form directly with each bank, financial institution, broker or transfer agent holding the assets. Form L-8 is used instead of a tax waiver (Form 0-1).


However, the Form L-8 cannot be used for:

    • The transfer of real estate, or
    • Decedents who die after December 31, 2001, but before January 1, 2017, with a taxable estate, plus adjusted taxable gifts, that exceeds $675,000 for Federal Estate Tax purposes under the provisions of the Internal Revenue Code in effect on December 31, 2001.
    • Decedents who die on or after January 1, 2017, but before January 1, 2018, with a taxable estate that exceeds $2 million for Federal Estate Tax purposes under the provisions of the Internal Revenue Code in effect on January 1, 2017.

NOTE: If you are qualified and use Form L-8, you will not need or receive a waiver (Form O-1) from the Division.

 

Tax waivers (Form 0-1) are required to transfer assets from a decedent's name to a beneficiary. Such assets can include:

   New Jersey real property (such as real estate);

   Funds held in New Jersey financial institutions;

   Brokerage accounts doing business in New Jersey;

   Stock or bonds of a company incorporated in New Jersey, or a New Jersey institution.

A summary of the laws that require the waiver are as follows:

 

Inheritance Tax (N.J.S.A. 54:35-5, N.J.S.A. 54:35-19)

New Jersey Transfer Inheritance Tax is a lien on all property owned by the decedent as of the date of their death for a period of 15 years unless the tax is paid before this, or secured by bond. The lien exists whether the tax is levied and assessed or not.

The law requires that, with certain exceptions, banking institutions and other institutions, corporations, and persons must receive written consent (i.e., a tax waiver) from the Director of the Division of Taxation before delivering or transferring any assets from a resident decedent to a beneficiary.

Specific Waiver Situations:

1 Individual Retirement Accounts (IRA's): A waiver is required to transfer any IRA that is held in a bank or other financial institution which would otherwise require a waiver. IRA's in the form of an annuity administered by an insurance company do not require waivers.

2 Brokerage Accounts: Waivers will be issued only for the total date of death value of the account. No waivers will be issued for individual securities held within a brokerage account. See "Brokerage Account" tab for further details.

3 Qualified Tuition Programs (529 Plans): Waivers are required to transfer any 529 Tuition Program in which the funds are held in a financial institution which would otherwise require a waiver.

Blanket Waiver – provides for the release of certain funds from banks without a waiver.

1 Authorized parties: An institution, association, organization, corporation, or person holding a decedent's funds may release up to 50 percent of the entire amount of funds on hand, without a waiver, to any of the following:

                     An executor;

                     Administrator;

                     Legal representative of the decedent;

                     Surviving joint tenant;

                     Cestui que trust; or

                     The estate of a minor in which title to funds are held in the name of a custodian for the minor.

2 50% of funds provision: The Blanket Waiver is limited to no more than 50 percent of the total funds in the entire account, whether the account is held in the decedent's name only or jointly with another.

3 Payment of tax: In addition to the amount permitted to be released by financial services firms under the above, institutions may honor any checks made payable to New Jersey Inheritance and/or Estate Tax without written consent of the Director. Payment can be in any amount for which there are sufficient funds held on deposit in any account owned by a decedent or their estate.

4 Payment of checks issued prior to death: When a check written by a decedent prior to their death is presented to a bank within 10 days of the decedent's date of death, the bank may honor the check. These payments can then be deducted before calculating 50% of the funds available for release under the Blanket Waiver provisions.

5 Stock exception: Securities of a New Jersey corporation registered in the name of a decedent and issued by any bank, or savings and loan association situated in this State, are not subject to the Blanket Waiver rule provided for in this section. Therefore, the written consent of the Director must be obtained in order to transfer or release all such assets.

6 Informant provision: The Director reserves the right to require the informant (the person who provides information about the decedent) to withhold any amount not yet distributed, pending further order of the Director.

Transfers permitted by banks and financial services institutions prior to receiving a tax waiver

Accounts: When making the transfers described below, the bank is required to retain the same control over the substituted account as the original account, until it has received a New Jersey Inheritance and Estate Tax waiver indicating the date of death balance of the original account.

1 Funds of a decedent on deposit in a checking account in any bank may be transferred to an interest-bearing account in the same bank in the name of the decedent or their estate without obtaining a tax waiver.

2 Funds of a decedent on deposit in an Individual Retirement Account (IRA) or Keogh retirement plan account may be transferred to another account in the same bank without obtaining a tax waiver.

3 Any certificate of deposit or any type of a preferred account containing funds of a decedent may be transferred to another account in the same bank without obtaining a tax waiver.

The transfers permitted above are subject to the requirement that the banking institution promptly file a notice with the Division of Taxation, Inheritance and Estate Tax Branch, PO Box 249, Trenton, New Jersey 08695-0249, containing the following information:

1 Decedent's name;

2 Date of death and domicile;

3 Name and address of executor or administrator of estate;

4 The account number, or certificate number, sought to be transferred, and the balance on deposit or the maturity value as of the date of death.

 

Last Updated: Tuesday, 08/02/22

How to Obtain a Waiver

Waivers (Form 0-1) can only be issued by the Inheritance Tax Branch of the NJ Division of Taxation. It is not a form you can obtain online or fill out yourself. In most circumstances, some kind of return or form must be filed with the Division in order to have a waiver issued.

 

Form L-8 (self-executing waiver for certain Class A beneficiaries ) can be substituted for Form 0-1 to obtain the release of financial (non-real estate) assets. An L-8 is valid only when the form is properly executed and used by or for the Class A beneficiaries indicated on the form.

Waiver Requirements - Brokerage Accounts

The New Jersey Inheritance Tax and Estate Tax statutes do not allow property owned by, or in the name of, a resident decedent to be transferred without written consent – in the form of a tax waiver – from the Director of the Division of Taxation. A lien remains on the decedent's property until taxes are paid.

An Inheritance/Estate Tax waiver is required to release the funds for all brokerage accounts held – individually or jointly – in a resident decedent's name. This tax waiver is required if the brokerage firm had an office in New Jersey, regardless of where the account was opened.

However, funds can be released without a waiver if a brokerage account passes to a decedent's :

   Surviving spouse/civil union partner or domestic partner;

   Child, stepchild, or legally adopted child;

   Grandchild or great-grandchild, (but not a step-grandchild or a step great-grandchild);

   Parent or grandparent.

Under the above circumstances, funds can be released if the executor, administrator, or certain beneficiaries of the estate, provides a properly completed Form L-8 to the brokerage firm. The L-8 form is an affidavit and self-executing tax waiver that is filed directly with the brokerage firm.

Assets are often held in a brokerage account registered in “street name” (i.e., when a brokerage holds a security – on behalf of a client – which is registered in the name of the institution). Those assets may be bought and sold within the account without first obtaining a tax waiver. However, until a tax waiver is obtained, these assets may not be transferred or released to the estate or beneficiaries, other than those permitted by the blanket waiver provisions of N.J.A.C. 18:26-11.16.

All blanket waiver provisions are applicable to brokerage accounts. The brokerage institution must retain assets worth half the value of an account on the decedent's date of death. The retained assets may not be released without a tax waiver. The institution may release whatever assets remain in the account, without a tax waiver, to:

   An executor;

   Administrator;

   Legal representative of the decedent;

   Surviving joint tenant;

   Cestui que trust (the beneficiary of a trust); or

   The estate of a minor, when the account is titled in the name of a custodian for the minor.

Examples:
A decedent's brokerage account held 1,000 shares of XYZ Corporation stock valued at $100,000 on the date of death:

   If, three months after the decedent's death, the account is valued at $200,000, assets valued at $150,000 may be released without a tax waiver. Assets valued at $50,000 must be retained pending receipt of a tax waiver;

   If, three months after the decedent's death, the account is valued at $60,000, assets worth $10,000 may be released without a tax waiver. Assets valued at $50,000 must be retained pending receipt of a tax waiver;

   If, three months after the decedent's death, the account is valued at $40,000, no assets may be released without a tax waiver.

The provisions of N.J.A.C. 18:26-11.8 also apply to brokerage accounts. Specifically, funds held in a decedent's Individual Retirement Account (IRA) may be transferred to another account within the same institution (such as an inherited IRA) without obtaining a waiver.

Additionally, all – or any part – of the assets held in a decedent's brokerage account may be moved to an estate account within the same institution. Until a waiver for the original account is received, the institution is required to retain the same control over the substituted account as it had over the original account.

Source https://www.nj.gov/treasury/taxation/inheritance-estate/inheritance.shtml