Kenneth Vercammen, Esq is Chair of the ABA Estate Planning & Probate Committee and presents seminars to attorneys and the public on Wills, Probate and other legal topics related to Estate Planning and Elder law.
To schedule a confidential consultation, call

Kenneth Vercammen & Associates, P.C.

2053 Woodbridge Avenue - Edison, NJ 08817

(732) 572-0500 www.njlaws.com

Sunday, January 27, 2008

Will Format

Portions of a Will used for certain Same sex couples

Last Will and Testament
of
______________________________________


I, _____________________________, of ______________________, ______________, hereby make, publish, and declare this to be my Last Will and Testament and revoke all previous wills and codicils made by me.
Section 1. Identification of Family
1.01 My partner’s name is ____________________________. All references in this will to my partner, whether or not specifically named, shall mean only my partner, ______________________.
1.02 I have (no) living children or issue. [Specify names of children and whether they are minors or adults. If minors, will must also include a Guardian of Person and Estate clause in conformance with state law. Include the partner’s children in the definition of children whether biological or adopted; include any children where the partner’s adoption petition has not been finalized.]
Section 2. Nomination of Executor
2.01 I hereby nominate ________________________ to serve as my Executor. Should this person be unable or unwilling at any time to serve as my Executor, I nominate ___________________ of ________________________, ________________, to serve as my Alternate Executor.
2.02 I direct that my Executor, and any successor thereto, be permitted to serve without bond in any jurisdiction.
Section 3. Disposition of Tangible Personal Property
3.01 I give, devise, and bequeath my tangible personal property to my partner, ___________________________. My Executor may, in his/her sole discretion, sell any of the property that, in his/her opinion, is not suitable for distribution, and the proceeds thereof shall become a part of my residuary estate. If the devisee named in this section does not survive me, I direct that the said property be disposed of or distributed with the residue of my estate.
Section 4. Residuary Devise
4.01 The balance of my residuary estate shall consist of all property or money owned by me at the time of my death and not otherwise effectively disposed of in this will, including all insurance proceeds or other death benefits that are payable to my estate but excluding any property over which I may have a power of appointment, less all valid claims asserted against my estate and all expenses incurred in administering my estate, including expenses of administering nonprobate assets.
4.02 I give, devise, and bequeath the balance of my residuary estate to my partner, ________________________________, if he/she survives me.
4.03 If my partner predeceases or fails to survive me I give, devise, and bequeath the balance of my residuary estate to _________________________.
4.04 I am leaving my estate to my partner, ________________, because he/she is my life partner. I am not making these provisions out of any disrespect or lack of affection or love for my family. It is my intention that my partner, _____________________, inherit my estate. [Also, see proposed clause in Chapter 4.]
Section 5. Specific Provision Regarding My Pet(s)
5.01 If my partner, _______________________, predeceases or fails to survive me, I bequeath any pets I may own at the time of my death to ____________________. He/She is willing and able to maintain my pets in a comfortable setting with a standard of care similar to that which I had provided for them. I bequeath to ____________________, for accepting my pets under the foregoing sentence, the sum of $500 per pet. This bequest is made with the intention that such amount shall defray the costs of providing care to my pets, but without any restriction or obligation to account to any person for the use of such funds.
5.02 If __________________________ is unable to accept and care for my pets, I authorize and request my Executor to select an appropriate person who is willing and able to do so and to maintain my pets in a comfortable setting with a standard of care similar to that which I had provided for them. I bequeath to the person accepting my pets under the foregoing sentence the sum of $500 per pet. This bequest is made with the intention that such amount shall defray the costs of providing care to my pets, but without any restriction or obligation to account to any person for the use of such funds.
Section 6. Powers of Executor
6.01 My Executor, and any successor thereto, shall have all of the powers granted to Executors and fiduciaries under the probate code and other applicable laws of the state of _______, including the power to execute any joint or individual tax return on my behalf or on behalf of my estate.
6.02 My Executor shall be entitled to reasonable compensation for services actually performed and to reimbursement of expenses properly incurred.
a. My Executor shall have, in addition to any other powers, the power to invest, reinvest, sell, mortgage, lease, or otherwise transfer or dispose of any part or all of my estate, without the necessity of obtaining prior or subsequent court approval;
b. To make repairs or improvements to my property as may be deemed necessary to preserve or enhance the value of my estate;
c. To borrow funds for use in estate administration if there are insufficient liquid assets in my estate;
d. To employ persons, including attorneys, investment advisors, or other agents for assistance or advice, or not to employ such persons, as my Executor deems appropriate;
e. To compromise and settle any claims against or in favor of my estate on such terms and conditions as my Executor deems best;
f. To make determinations as to the allocation of receipts and the apportionment of expenditures between income and principal. My Executor shall not be required to follow any provision of law regarding such determinations, including [relevant chapter of state code].
6.03 My Executor may make distributions either in cash or in kind. Distributions in kind may be made at the discretion of my Executor. My Executor may make any distributions under this will either (1) directly to the beneficiary, (2) in any form allowed by applicable state law for gifts or transfers to minors or persons under disability, (3) to the beneficiary’s guardian, conservator, or caregiver for the benefit of the beneficiary, or (4) by direct payment of the beneficiary’s expenses.
more details at http://www.njlaws.com/Will_Format.htm

Confidential Will Questionnaire for Same Sex couples

Confidential Will Questionnaire for Same Sex couples

Please answer the following questions. Your answers provide a basis for discussing your specific estate plan needs and intentions. The answers will be used to draft your documents. Please answer the questions as completely as possible. If certain questions do not apply to you, please mark them as “N/A.” All information supplied is strictly confidential and necessary to provide you with proper advice. We will discuss any questions you have about the requested information when we meet.

1. Your legal name: ____________________________________________________
2. Partner’s legal name: _________________________________________________
3. Do you currently have a will? [ ] Yes (Please have it available) [ ] No
4. Home address: ______________________________________________________
Telephone number: ______________________________________
5. Date of birth: _______________________________________
Place of birth: _______________________________________
Citizenship:_______________________________________
6. Have you been married? [ ] Yes [ ] No
If “Yes” did marriage end in [ ] death or [ ] divorce?
Year marriage ended: _____________
If there was a divorce, please have a copy of the divorce decree available.
7. Do you have a domestic partnership agreement in effect? [ ] Yes [ ] No
If “Yes” please have a copy available for review.
8. Do you have any children? [ ] Yes [ ] No
(Skip to Question 9 if you have no children)
a. Do any of your children have special needs or are any handicapped? [ ] Yes [ ] No
b. Who has physical custody of the children? ____________________________
c. Please list all of your children, including adopted children. Include names, city, state, and ages.

Name City, State DOB
_____________________________ ___________________________ _______
_____________________________ ___________________________ _______
_____________________________ ___________________________ _______

d. Please identify any children who may have predeceased you: ________________________________________________________________________
________________________________
(Use other side if additional space is needed)
Specific Bequests of Property to Specific Persons
In many situations a person tells family members how (s)he wants the personal property divided. Generally, these items are not specifically mentioned in the will. This leaves you free to create a separate list that you may change whenever you like without having to rewrite your will. You can use the will to make a specific bequest if you are concerned your wishes will not be honored. A specific bequest may also be appropriate if you intend to leave an item to a nonfamily member.

9. Please indicate the specific item(s) you want distributed and the name of the person(s) to whom you are leaving the item(s). ___________________________
___________________________________________________________________
___________________________________________________________________
(Use other side if additional space is needed)
10. PETS. If you have pets you may want to consider what happens to them after your death. You may want to provide that a specific individual cares for your pets. In that situation, you may want to provide a specific monetary bequest to that person for the care of the pet. __________________________________
___________________________________________________________________
___________________________________________________________________
Beneficiaries of Your Estate
Please think about who you want to name to inherit your estate. You must also consider who will inherit the balance of your property (after the executor distributes the specific bequests, if any). Example: Do you want everything to go to your partner? If you have children, do you want to provide for them? Grandchildren? Other family members? Do you want everyone to receive equal shares?

11. Name the person(s) to whom you want to leave your estate:
Name: ____________________________________________
Relationship: ______________________________________
City/State: ________________________________________
Name: ____________________________________________
Relationship: ______________________________________
City/State: ________________________________________
(Use other side if additional space is needed)
12. Name the person(s) you wish to be the alternate beneficiary of your estate:
Name: ____________________________________________
Relationship: ______________________________________
City/State: ________________________________________
Name: ____________________________________________
Relationship: ______________________________________
City/State: ________________________________________
Name: ___________________________________________
Relationship: ______________________________________
City/State: ________________________________________
(Use other side if additional space is needed)
13. GUARDIANSHIP OF MINOR CHILDREN. If you have children under the age of 18 you need to consider naming a guardian. Natural parents have priority in these matters. You can name someone to be the guardian of the person and of the estate. If you do not name a guardian, and there is no other natural parent, the probate court will appoint one for any minor child(ren).

a. First choice for guardian:

Name: ____________________________________________
Relationship: ______________________________________
City/State: _________________________________________

b. Alternate choice for guardian:

Name: ____________________________________________
Relationship: ______________________________________
City/State: _________________________________________

14. EXECUTOR. Every will needs an individual to act as the executor. This is the person responsible for collecting all the property at the time of death and paying all legal debts, taxes, and expenses out of the property collected. The executor is also responsible for distributing the remaining property to the people named in your will. The executor can be anyone over the age of eighteen or it can be an institution. It is advisable to name an alternate executor in case the first person is unable or unwilling to accept the responsibility. Your executor will be compensated from the estate assets according to a schedule set by [your state] law. The executor may choose to waive the fee.

a. First choice for executor:

Name: ____________________________________________
Relationship: ______________________________________
City/State: ________________________________________

b. Alternate choice for executor:

Name: ____________________________________________
Relationship: ______________________________________
City/State: _________________________________________

15. WILL CONTEST. Consider whether any family member is apt to file a will contest. If you think that may happen, you may want to include a provision to deter people from filing a will contest. You may provide that anyone contesting the will receives nothing from the estate. Generally, you will need to leave a specific bequest sufficient to make an heir think twice before contesting your will.
16. TAX ISSUES. In order to determine if tax planning is required for your estate it is important to estimate the overall value of your accumulated property. This includes life insurance and all property listed in your name. The 2004 exemption for federal estate tax is $1.5 million. If your total estate is over $1 million more extensive estate planning may be required. We will discuss the alternatives at the interview.
Estimated value of your total assets at present: (Check one)
a. [ ] Under $1 million
b. [ ] Over $1 million
17. Do you want to sign a durable power of attorney for finances? [ ] Yes [ ] No
a. Whom do you want to name as your attorney-in-fact (the person to whom you are giving the authority to act on your behalf)?

Name: ____________________________________________________________
Address: __________________________________________________________
Telephone number: _________________________________________________
Relationship: ______________________________________________________

b. Alternate Attorney-in-fact:

Name: ____________________________________________________________
Address: ___________________________________________________________
Telephone number: _________________________________________________
Relationship: _______________________________________________________

18. Do you want to sign a health care power of attorney and living will? [ ] Yes [ ] No
a. First choice (the person designated to make health care decisions for you):

Name: ____________________________________________________________
Address: ___________________________________________________________
Telephone number: _________________________________________________
Relationship: _______________________________________________________

b. Alternate choice:

Name: ____________________________________________________________
Address: ___________________________________________________________
Telephone number: _________________________________________________
Relationship: _______________________________________________________

19. Do you want to execute a designation of agent? This document allows you to name someone to make decisions concerning who will visit you in a health care facility (including nursing home and hospice), disposition of personal effects, disposition of remains, and funeral arrangements. While these documents have not been tested in court, it does give you the opportunity to make your intentions known. [ ] Yes [ ] No
Assets
Generally, a will does not list each and every item of property that you want to convey following your death. However, it is important to list the form of ownership and the approximate value of your property. If you are unsure as to the form of ownership you can ask your insurance agent or your mortgage holder. If you are still uncertain please have the documents available and we will review them together. It is important that you complete the answers concerning the following assets as best you can.
20. a. REAL PROPERTY (e.g., residence, vacant land, rental property, vacation home). Please have your deeds available for review.

(i) Location: _______________________________________________________
Market value and mortgage balance: ___________________________________
Exact way owner(s) are named on deed: ________________________________
__________________________________________________________________
(ii) Location: _______________________________________________________
Market value and mortgage balance: ___________________________________
Exact way owner(s) are named on deed: ________________________________
__________________________________________________________________
(Use other side if additional space is needed)

b. BANK ACCOUNTS (Indicate whether checking, savings, brokerage account, or CDs)

Name/location of financial institution:__________________________________
Account balance: _____________________
Name of account holder (specify if joint or payable on death): _____________
Name/location of financial institution: _________________________________
Account balance: _____________________
Name of account holder (specify if joint or payable on death): _____________
Name/location of financial institution: _________________________________
Account balance: _____________________
Name of account holder (specify if joint or payable on death): _____________
Name/location of financial institution:__________________________________
Account balance: _____________________
Name of account holder (specify if joint or payable on death): _____________
(Use other side if additional space is needed)

c. IRAs, RETIREMENT PLANS (including 401k accounts)

Name/location of financial institution: _________________________________
Account balance: _____________________
Name of account holder: _____________________________________________
Name of beneficiary: ________________________________________________
Name/location of financial institution: _________________________________
Account balance: _____________________
Name of account holder: ____________________________________________
Name of beneficiary: ________________________________________________
Name/location of financial institution: _________________________________
Account balance: _____________________
Name of account holder: _____________________________________________
Name of beneficiary: ________________________________________________
Name/location of financial institution:__________________________________
Account balance: _________________________________
Name of account holder: _____________________________________________
Name of beneficiary: ________________________________________________
(Use other side if additional space is needed)

d. STOCKS, BONDS, MUTUAL FUNDS, INCLUDING U.S. SAVINGS BONDS
Name(s) of stocks/bonds/funds: _______________________________________
How holdings are held: ______________________________________________
Approximate value: _________________________________________________
Name(s) of stocks/bonds/funds: _______________________________________
How holdings are held: ______________________________________________
Approximate value: _________________________________________________
Name(s) of stocks/bonds/funds: _______________________________________
How holdings are held: ______________________________________________
Approximate value: _________________________________________________
(Use other side if additional space is needed)

e. TITLED VEHICLES; list all cars, trucks, boats, and motorcycles:

Year/make/model: __________________________________________________
Titled owner: ______________________________________________________
Approximate value: _________________________________________________
Year/make/model: __________________________________________________
Titled owner: ______________________________________________________
Approximate value: _________________________________________________
(Use other side if additional space is needed)

f. OTHER IMPORTANT ASSETS (e.g., stamp/coin/other collections, business interests, partnerships, lottery winnings):
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
(Use other side if additional space is needed)

g. LIFE INSURANCE POLICIES

Name on policy: ____________________________________________________
Face value: ________________________________________________________
Beneficiary: ________________________________________________________
Name on policy: ____________________________________________________
Face value: ________________________________________________________
Beneficiary: ________________________________________________________
(Use other side if additional space is needed)

Please note any additional questions you want to discuss during the interview.

Thursday, January 24, 2008

ESTATE PLANNING FOR GAY AND LESBIAN COUPLES WHO HAVE NOT ENTERED INTO A CIVIL UNION OR REGISTERED AS DOMESTIC PARTNERS

ESTATE PLANNING FOR GAY AND LESBIAN COUPLES WHO HAVE NOT ENTERED INTO A CIVIL UNION OR REGISTERED AS DOMESTIC PARTNERS
"SAVE MONEY AND PROVIDE FOR YOUR LOVED ONES "
By Kenneth A. Vercammen

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 Americans with assets 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 or married with children 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, your partner cannot receive any assets and cannot administer your estate. The result can be lengthy delays and other problems. Individuals in gay or lesbian relationships need properly drafted Wills and estate planning documents more than straight persons. The probate laws generally provide if a person dies without a Will, their property goes to family, rather than a partner they had a relationship with for years or decades.

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
* Possible additional State inheritance taxes and Federal estate taxes
* If you have no s Civil Union , 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 between your partner and your family
When your loved ones are grieving and dealing with death, they shouldn’t be overwhelmed with disputes over property and 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 FOR UNMARRIED PERSON:

1ST: DEBTS AND TAXES
2ND: SPECIFIC BEQUESTS TO PARTNER, CHARITY, ETC
3RD: DISPOSITION TO PARTNER
4TH: DISPOSITION OF REMAINDER OF ESTATE IF PARTNER IS PREDECEASED
5TH: CREATION OF TRUSTS FOR PARTNER
6TH: DISTRIBUTION TO CHILDREN OR TRUST FOR CHILDREN
7TH: OTHER BENEFICIARIES UNDER 21
8TH: EXECUTORS
9TH: TRUSTEES
10TH: GUARDIANS OF CHILDREN
11TH: NO SURETY OR BOND REQUIRED
12TH: POWERS
13TH: SELF PROVING WILL
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:

* Domestic Partnership, Marriage, death, birth, divorce or separation affecting people named in your Will
*Significant changes in the value of your total assets or in any particular assets which you own
* Changes in your relationships
* A change in your State domicile

* Death or incapacity of a beneficiary, or death, incapacity or change in residence of a named executor, or of one of the witnesses to the execution of the Will if the Will is not self- proving

*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.
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 by an attorney or a Codicil prepared by an attorney signed to legally change portions of the Will.


SAVE MONEY

Probate in New Jersey is not difficult. 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. When you meet with your attorney to draft a Will, you may also learn ideas to reduce death taxes and other expenses. Don’t pinch pennies now to the detriment of your Partner and 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 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 $300.00 to $600.00. It is one of the most important documents you will ever sign, and may be one of the best bargains you will ever have.
Also, ascertain if your Will is “self-proving”, which would dispense with having to find the Will’s 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. 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 decedent's next of kin and will beneficiaries
4. Minimum of $100.00 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
-Power of Attorney- to allow your partner or another person to administer your assets during your lifetime, either upon disability or now
-Living Wills/ Advance Directive- to state your wishes concerning medical care in the event of your serious illness and to allow your partner or another person to make medical decisions.

In the absence of a Power of Attorney or other legal arrangement to distribute property if you become disabled, your partner cannot pay your bills or access your assets. The result can be lengthy delays.

Reasons to have a Power of Attorney

What are these powers of attorney?

A Power of Attorney is a written document in which a competent adult individual (the "principal") appoints another competent adult individual (the "attorney-in-fact") to act on the principal's behalf. In general, an attorney-in-fact may perform any legal function or task which the principal has a legal right to do for him/herself. You may wish to sign a Power of Attorney giving your partner the power to handle your affairs if you become ill or disabled.

The term "durable" in reference to a power of attorney means that the power remains in force for the lifetime of the principal, even if he/she becomes mentally incapacitated. A principal may cancel a power of attorney at any time for any reason. Powers granted on a power of attorney document can be very broad or very narrow in accordance with the needs of the principal.

Why is Power of Attorney so important?

Every adult has day-to-day affairs to manage, such as paying the bills. Many people are under the impression that, in the event of catastrophic illness or injury, a live-in partner, or child can automatically act for them. Unfortunately, this is often wrong, even when joint ownership situations exist. Even under the "new" NJ Domestic Partner Act, you cannot act on behalf of a partner if they become disabled. A Power of Attorney allows your partner or another person to administer your assets during your lifetime, either upon disability or now.

The lack of properly prepared and executed power of attorney can cause extreme difficulties when an individual is stricken with severe illness or injury rendering him/her unable to make decisions or manage financial and medical affairs. New Jersey has a detailed, expensive legal procedures, called Guardianships or conservatorships, to provide for appointment of a Guardian. These normally require lengthy, formal proceedings and are expensive in court. This means involvement of lawyers to prepare and file the necessary papers and doctors to provide medical testimony regarding the mental incapacity of the subject of the action. The procedures also require the involvement of a temporary guardian to investigate, even intercede, in surrogate proceedings. This can be slow, costly, and very frustrating. In addition, the domestic partner can be challenged in a guardianship by the incapacitated person's family members.

Advance preparation of the Power of Attorney could avoid the inconvenience and expense of guardianship proceedings. This needs to be done while the principal is competent, alert and aware of the consequences of his / her decision. Once a serious problem occurs, it is usually too late.

The Power of Attorney can be effective immediately upon signing or only upon disability. Some examples of legal powers contained in the Power of Attorney are the following:

1. REAL ESTATE: To execute all contracts, deeds, bonds, mortgages, notes, checks, drafts, money orders, and to lease, collect rents, grant, bargain, sell, or borrow and mortgage, and to manage, compromise, settle, and adjust all matters pertaining to real estate.

2. ENDORSEMENT OF NOTES, ETC.: To make, execute, endorse, accept, and deliver any and all bills of exchange, checks, drafts, notes and trade acceptances.

3. PAYMENT OF NOTES, ETC.: To pay all sums of money, at any time, or times, that may hereafter be owing by me upon any bill of exchange, check, draft, note, or trade acceptance, made, executed, endorsed, accepted, and delivered by me, or for me, and in my name, by my Agent.

4. STOCKS, BONDS, AND SECURITIES: To sell any and all shares of stocks, bonds, or other securities now or hereafter, belonging to me, that may be issued by an association, trust, or corporation whether private or public, and to make, execute, and deliver any assignment, or assignments, of any such shares of stock, bonds, or other securities.

5. CONTRACTS, AGREEMENTS, ETC.: To enter into safe deposit boxes, and to make, sign, execute, and deliver, acknowledge, and perform any contract, agreement, writing, or thing that may, in the opinion of my Agent, be necessary or proper to be entered into, made or signed, sealed, executed, delivered, acknowledged or performed.

6. BANK ACCOUNTS, CERTIFICATES OF DEPOSIT, MONEY MARKET ACCOUNTS, ETC.: To add to or withdraw any amounts from any of my bank accounts, Certificates of Deposit, Money Market Accounts, etc. on my behalf or for my benefit. To make, execute, endorse, accept and deliver any and all checks and drafts, deposit and withdraw funds, acquire and redeem certificates of deposit, in banks, savings and loan associations and other institutions, execute or release such deeds of trust or other security agreements as may be necessary or proper in the exercise of the rights and powers herein granted; Without in any way being limited by or limiting the foregoing, to conduct banking transactions.

7. TAX RETURNS, INSURANCE AND OTHER DOCUMENTS: To sign all Federal, State, and municipal tax returns, insurance forms and any other documents and to represent me in all matters concerning the foregoing.

You should contact your attorney to have a Power of Attorney Prepared, together with a Will, Living Will and other vital Estate Planning documents.

Gay and Lesbians- Living Will/ Advance Directives
Planning Ahead For Your Health Care:

Compiled by Kenneth Vercammen

In the absence of a Living Will or other legal arrangement if you become disabled, your partner generally has no say regarding medical care or life support. Your partner cannot access your assets. Your partner cannot receive information on your medical status or medical care. Advance directives are very personal documents and you should feel free to develop one which best suits your own needs.
All States have declared that competent adults have the fundamental right in collaboration with their health care providers, to control decisions about their own health care. States recognize in their law and public policy, the personal right of the individual patient to make voluntary, informed choices to accept, to reject or to choose among alternative courses of medical and surgical treatment. If you have a Living Will, you can designate your partner as a decision maker.

WHY LIVING WILLS
Modern advances in science and medicine have made possible the prolongation of the lives of many seriously ill individuals, without always offering realistic prospects for improvement or cure. For some individuals the possibility of extended life is experienced as meaningful and of benefit. For others, artificial prolongation of life may seem to provide nothing medically necessary or beneficial, serving only to extend suffering and prolong the dying process. States recognize the inherent dignity and value of human life and within this context recognize the fundamental right of individuals to make health care decisions to have life-prolonging medical or surgical means or procedures provided, withheld, or withdrawn.
States recognize the right of competent adults to plan ahead for health care decisions through the execution of advance directives, such as Living Wills and durable powers of attorney, and to have their wishes respected, subject to certain limitations.

PURPOSE OF LIVING WILLS
In order to assure respect for patients' previously expressed wishes when the capacity to participate actively in decision making has been lost or impaired; to facilitate and encourage a sound decision making process in which patients, health care representatives, families, physicians, and other health care professionals are active participants; to properly consider patients' interests both in self-determination and in well-being; and to provide necessary and appropriate safeguards concerning the termination of life-sustaining treatment for incompetent patients as the law and public policy of this State, the Legislatures have enacted Living Will/ Advance Directives for Health Care Acts.

REQUIREMENTS OF STATUTE
The advance directive for health care (Living Will) requires a writing executed in accordance with the requirements of the state law. It must be either signed and dated in front of an attorney at law or other person authorized to administer oaths, or in the presence of two subscribing adult witnesses. If the two adult witnesses are used, they both must attest that the declarant is of sound mind and not under undue influence. A designated health care representative shall not act as a witness to the execution of the advance directive. Since this is a legal document, it must be executed properly to be valid under the statute.

HEALTH CARE REPRESENTATIVE
The declarant must designate one or more alternative health care representatives. "Health care representative" means the person designated by you under the Living Will for the purpose of making health care decisions on your behalf.

WHEN DOES THE ADVANCE DIRECTIVE BECOME OPERATIVE
An advance directive becomes operative when (1) it is transmitted to the attending physician or to the health care institution, and (2) it is determined pursuant to the Act that the patient lacks capacity to make a particular health care decision.
Treatment decisions pursuant to an advance directive shall not be made and implemented until there has been a reasonable opportunity to establish and where appropriate confirm, a reliable diagnosis for the patient which shall include the attending physician's opinion concerning the nature, cause, extent, and probable duration of the patient's incapacity, and shall be made a part of the patient's medical records. For additional information or to have a "Living Will" prepared, see your attorney. In addition, be certain your Last Will and testament is up to date.

As Americans, we take it for granted that we are entitled to make decisions about our own health care. Most of the time we make these decisions after talking with our own physician about the advantages and disadvantages of various treatment options. The right of a competent individual to accept or refuse medical treatment is a fundamental right now fully protected by law.

But what happens if serious illness, injury or permanent loss of mental capacity makes us incapable of talking to a doctor and deciding what medical treatments we do or do not want? These situations pose difficult questions to all of us as patients, family members, friends and health care professionals. Who makes these decisions if we can't make them for ourselves? If we can't make our preferences known how can we make sure that our wishes will be respected? If disagreements arise among those caring for us about different treatment alternatives how will they be resolved? Is there a way to alleviate the burdens shouldered by family members and loved ones when critical medical decisions must be made?

Living Will:
By using documents known as advance directives for health care, you can answer some of these questions and give yourself the security of knowing that you can continue to have a say in your own treatment. A properly prepared Living Will permits you to plan ahead so you can both make your wishes known, and select someone who will see to it that your wishes are followed.

After all, if you are seriously ill or injured and can't make decisions for yourself someone will have to decide about your medical care. Doesn't it make sense to

• Have your partner or another person you trust make decisions for you,

• Provide instructions about the treatment you do and do not want, or

• Both appoint a person to make decisions and provide them with instructions.


About Kenneth Vercammen
Kenneth Vercammen is a Litigation Attorney in Edison, NJ, approximately 17 miles north of Princeton. He often lectures for the New Jersey State Bar Association on Probate, personal injury, criminal / municipal court law and drunk driving. He has published 125 articles in national and New Jersey publications on municipal court and litigation topics. He has served as a Special Acting Prosecutor in seven different cities and towns in New Jersey and also successfully defended hundreds of individuals facing Municipal Court and Criminal Court charges.
In his private practice, he has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey several times each week on many personal injury matters, Municipal Court trials, arbitration hearings and contested administrative law hearings.
Since 1985, his primary concentration has been on litigation matters. Mr. Vercammen gained other legal experiences as the Confidential Law Clerk to the Court of Appeals of Maryland (Supreme Court), with the Delaware County, PA District Attorney Office handling Probable Cause Hearings, Middlesex County Probation Dept as a Probation Officer, and an Executive Assistant to Scranton District Magistrate, Thomas Hart, in Scranton, PA.


KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com

Sunday, January 13, 2008

WILLS AND ESTATE PLANNING FOR GAY AND LESBIAN COUPLES

WILLS AND ESTATE PLANNING FOR GAY AND LESBIAN COUPLES

"SAVE MONEY AND PROVIDE FOR YOUR LOVED ONES " By Kenneth A. Vercammen
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 or married with children 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, your partner cannot receive any assets and cannot administer your estate. The result can be lengthy delays and other problems before the rightful heirs receive their property. And because you have no instructions , no charitable gifts can 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 * 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 between your partner and your family When your loved ones are grieving and dealing with death, they shouldn't be overwhelmed with disputes over property and 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 FOR UNMARRIED PERSON:

1ST: DEBTS AND TAXES 2ND: SPECIFIC BEQUESTS TO PARTNER, CHARITY, ETC 3RD: DISPOSITION TO PARTNER 4TH: DISPOSITION OF REMAINDER OF ESTATE IF PARTNER IS PREDECEASED 5TH: CREATION OF TRUSTS FOR PARTNER 6TH: DISTRIBUTION TO CHILDREN OR TRUST FOR CHILDREN 7TH: OTHER BENEFICIARIES UNDER 21 8TH: EXECUTORS 9TH: TRUSTEES 10TH: GUARDIANS OF CHILDREN 11TH: NO SURETY OR BOND REQUIRED 12TH: POWERS 13TH: SELF PROVING WILL 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 people named in your Will *Significant changes in the value of your total assets or in any particular assets which you own * Changes in your relationships * A change in your State domicile

* Death or incapacity of a beneficiary, or death, incapacity or change in residence of a named executor, or of one of the witnesses to the execution of the Will if the Will is not self- proving

*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. 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

Probate in New Jersey is not difficult. 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. When you meet with your attorney to draft a Will, you may also learn ideas to reduce death taxes and other expenses. Don't 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 can involve a careful analysis of the client¹s assets, 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 $200.00 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. Also, ascertain if your Will is "self-proving", which would dispense with having to find the Will's 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. 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 decedent's 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 -Power of Attorney- to allow your partner or another person to administer your assets during your lifetime, either upon disability or now -Living Wills/ Advance Directive- to state your wishes concerning medical care in the event of your serious illness and to allow your partner or another person to make medical decisions.

Reasons to have a Power of Attorney

What are these powers of attorney?

A Power of Attorney is a written document in which a competent adult individual (the "principal") appoints another competent adult individual (the "attorney-in-fact") to act on the principal's behalf. In general, an attorney-in-fact may perform any legal function or task which the principal has a legal right to do for him/herself. You may wish to sign a Power of Attorney giving your partner the power to handle your affairs if you become ill or disabled.

The term "durable" in reference to a power of attorney means that the power remains in force for the lifetime of the principal, even if he/she becomes mentally incapacitated. A principal may cancel a power of attorney at any time for any reason. Powers granted on a power of attorney document can be very broad or very narrow in accordance with the needs of the principal.

Why is Power of Attorney so important?

Every adult has day-to-day affairs to manage, such as paying the bills. Many people are under the impression that, in the event of catastrophic illness or injury, a live-in partner, spouse or child can automatically act for them. Unfortunately, this is often wrong, even when joint ownership situations exist.

The lack of properly prepared and executed power of attorney can cause extreme difficulties when an individual is stricken with severe illness or injury rendering him/her unable to make decisions or manage financial and medical affairs. All states have detailed, expensive legal procedures, called Guardianships or conservatorships, to provide for appointment of a Guardian. These normally require lengthy, formal proceedings and are expensive in court. This means involvement of lawyers to prepare and file the necessary papers and doctors to provide medical testimony regarding the mental incapacity of the subject of the action. The procedures also require the involvement of a temporary guardian to investigate, even intercede, in surrogate proceedings. This can be slow, costly, and very frustrating.

Advance preparation of the Power of Attorney can avoid the inconvenience and expense of legal proceedings. This needs to be done while the principal is competent, alert and aware of the consequences of his/her decision. Once a serious problem occurs, it is usually too late. The Power of Attorney can be effective immediately upon signing or only upon disability. Some examples of legal powers contained in the Power of Attorney are the following:

1. REAL ESTATE: To execute all contracts, deeds, bonds, mortgages, notes, checks, drafts, money orders, and to lease, collect rents, grant, bargain, sell, or borrow and mortgage, and to manage, compromise, settle, and adjust all matters pertaining to real estate.

2. ENDORSEMENT OF NOTES, ETC.: To make, execute, endorse, accept, and deliver any and all bills of exchange, checks, drafts, notes and trade acceptances.

3. PAYMENT OF NOTES, ETC.: To pay all sums of money, at any time, or times, that may hereafter be owing by me upon any bill of exchange, check, draft, note, or trade acceptance, made, executed, endorsed, accepted, and delivered by me, or for me, and in my name, by my Agent.

4. STOCKS, BONDS, AND SECURITIES: To sell any and all shares of stocks, bonds, or other securities now or hereafter, belonging to me, that may be issued by an association, trust, or corporation whether private or public, and to make, execute, and deliver any assignment, or assignments, of any such shares of stock, bonds, or other securities.

5. CONTRACTS, AGREEMENTS, ETC.: To enter into safe deposit boxes, and to make, sign, execute, and deliver, acknowledge, and perform any contract, agreement, writing, or thing that may, in the opinion of my Agent, be necessary or proper to be entered into, made or signed, sealed, executed, delivered, acknowledged or performed.

6. BANK ACCOUNTS, CERTIFICATES OF DEPOSIT, MONEY MARKET ACCOUNTS, ETC.: To add to or withdraw any amounts from any of my bank accounts, Certificates of Deposit, Money Market Accounts, etc. on my behalf or for my benefit. To make, execute, endorse, accept and deliver any and all checks and drafts, deposit and withdraw funds, acquire and redeem certificates of deposit, in banks, savings and loan associations and other institutions, execute or release such deeds of trust or other security agreements as may be necessary or proper in the exercise of the rights and powers herein granted; Without in any way being limited by or limiting the foregoing, to conduct banking transactions.

7. TAX RETURNS, INSURANCE AND OTHER DOCUMENTS: To sign all Federal, State, and municipal tax returns, insurance forms and any other documents and to represent me in all matters concerning the foregoing.

You should contact your attorney to have a Power of Attorney Prepared, together with a Will, Living Will and other vital Estate Planning documents.

SPECIAL NOTE: This information was issued to inform and not to advise. The statements are general, and individual facts in a given case may alter their application or involve other laws not referred to here. For specific legal advice, contact an attorney. Kenneth A. Vercammen is a Middlesex County trial attorney who has published 125 articles in national and New Jersey publications on litigation topics. He has been selected to lecture to trial lawyers by the American Bar Association, New Jersey State Bar Association and Middlesex County Bar Association. Call our office to schedule a "confidential" appointment 732-572-0500






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Kenneth Vercammen is the Managing Attorney at Kenneth Vercammen & Associates in Edison, NJ. He is a New Jersey trial attorney has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appears in Courts throughout New Jersey each week for litigation and contested Probate hearings.

Mr. Vercammen has published over 125 legal articles in national and New Jersey publications on elder law, probate and litigation topics. He is a highly regarded lecturer on litigation issues 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 is chair of the Elder Law Committee of the American Bar Association General Practice Division. He is also Editor of the ABA Estate Planning Probate Committee Newsletter and also the Criminal Law Committee newsletter. Mr. Vercammen is a recipient of the NJSBA- YLD Service to the Bar Award. And past Winner "General Practice Attorney of the Year" from the NJ State Bar Association. He is a 22 year active member of the American Bar Association. He is also a member of the ABA Real Property, Probate & Trust Section.

He established the NJlaws website www.njlaws.com which includes many articles on Elder Law. Mr. Vercammen received his B.S., cum laude, from the University of Scranton and his J.D. from Widener/Delaware Law School, where he was the Case Note Editor of the Delaware Law Forum, a member of the Law Review and the winner of the Delaware Trial Competition.

RECENT SPEAKING ENGAGEMENTS ON WILLS, ELDER LAW, AND PROBATE

Edison Adult School -Wills, Elder Law & Probate- 2007, 2006, 2005, 2004, 2003, 2002 [inc Edison TV], 2001, 2000,1999,1998,1997
Nuts & Bolts of Elder Law - NJ Institute for Continuing Legal Education/ NJ State Bar ICLE/NJSBA 2007, 2006, 2005, 2004, 2003, 2002, 2000, 1999, 1996
Elder Law and Estate Planning- American Bar Association Miami 2007
Elder Law Practice, New Ethical Ideas to Improve Your Practice by Giving Clients What They Want and Need American Bar Association Hawaii 2006
South Plainfield Seniors- New Probate Law 2005, East Brunswick Seniors- New Probate Law 2005
Old Bridge AARP 2002; Guardian Angeles/ Edison 2002; St. Cecilia/ Woodbridge Seniors 2002;
East Brunswick/ Hall's Corner 2002;
Linden AARP 2002
Woodbridge Adult School -Wills and Estate Administration -2001, 2000, 1999, 1998, 1997, 1996
Woodbridge Housing 2001; Metuchen Seniors & Metuchen TV 2001; Frigidare/ Local 401 Edison 2001; Chelsea/ East Brunswick 2001, Village Court/ Edison 2001; Old Bridge Rotary 2001; Sacred Heart/ South Amboy 2001; Livingston Manor/ New Brunswick 2001; Sunrise East Brunswick 2001; Strawberry Hill/ Woodbridge 2001;
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 1999-2005
Senior Legal Points University of Medicine & Dentistry UMDNJ & St. Peter's-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 & Channel 28 TV 1999, 1997,1993
Wills and Estate Planning-Old Bridge Adult School 1998,1997,1995
Senior Citizen Law-Perth Amboy YMHA 1995; Temple Beth Or 2002;
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
BUSINESS AND AMERICAN BAR ASSOCIATION SPEAKING ENGAGEMENTS:
Improving Your Elder Law & Estate Practice San Francisco, CA 2007
Elder Law and Estate Planning- ABA Miami 2007
Elder Law Practice, New Ethical Ideas to Improve Your Practice by Giving Clients What They Want and Need ABA Hawaii 2006
Marketing Success Stories ABA Toronto 1998
Opening a Business-Sayreville Adult School 1997,1996,1995
Olympians of Marketing- ABA Annual Meeting-Orlando, Florida 1996

Contact the Law Office of
Kenneth Vercammen & Associates, P.C.
at 732-572-0500
for an appointment.