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.
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Kenneth Vercammen & Associates, P.C.

2053 Woodbridge Avenue - Edison, NJ 08817

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Monday, January 18, 2016

Estate Planning Break Up.

Estate Planning  Break Up.
         By Kenneth A. Vercammen, Esq. Author ABA’s “Wills & Estate Administration” book
          If you do not write a Will, the government has already written one for you. Your assets go to whoever a state law says receives the assets, or to the government itself!
          As average Americans, we work 80,000 hours in a lifetime, or 45 to 55 years. In the havoc after a break up, many persons forget to have a Will done to assure assets and decisions are taken out of the hands or the ex spouse and ex spouse’s family.
         In spite of all our resources and the assets we earn during our lifetime, the vast majority of Americans do not take the time to create the legal instructions to guide the court or a guardian upon their death. National statistics indicate that more than 50% of Americans foolishly die without leaving a Will. In the absence of a Will  or other legal arrangement to distribute property at death, the problems often arise and a Judges decides who gets custody of your children and handles your money. This process is called the law of intestacy. The result can be lengthy delays in the distribution of your estate, court battles between relatives and your children being raised by someone you do not favor. Without a Will, your family will have to pay substantial costs for accountants, attorneys, bonding companies and probate fees.
         In planning, make sure your assets go to your loved ones or favorite charity, not an "ex". Therefore, we advise our separated or divorced clients to do the following:

1)            Have an Estate Planning Law attorney prepare a Will to distribute your assets to the people you care about the most. If you already have a Will, prepare a new Will and have the old Will revoked. (Your estate planning attorney will explain this to you.) Usually a new executor is selected, who will also serve as funeral agent.
          Although in many states under law a divorce removes the ex spouse as a beneficiary, it does not remove the ex as executor or receiving assets under a bank POD or joint account. Don’t ever use with a cheap online form that often is not filled out correctly. Self prepared documents are often not witnessed right and are not admitted to probate. Have an experienced attorney prepare the estate planning documents who will do it right. I could change my car oil and repair the lawnmower, but I now prefer an experienced mechanic do that. You can also create specific bequests so nice jewelry or family heirlooms go to a selected child. Otherwise the executor can just sell them at the pawn shop. You can also direct in your Will a child be excluded from inheriting. Example- they testified against you in divorce court.
2)  Prepare a Power of Attorney to select someone to handle your finances if you become disabled. Have your old Power of Attorney revoked. This means your attorney or you should send notices to banks and your accounts to indicate the prior Power of Attorney is invalid. If you have children over age 18, have your attorney prepare a Power of Attorney for the  over 18 children so the custodial parent can still have access to their records and pay their bills if they are in an accident.
3)  Select a new beneficiary on assets you may own, such as stocks, transfer upon death brokerage accounts, bank accounts, IRA, retirement accounts, 401k, payable upon death accounts POD , and other financial assets. Make sure you see the actual change in beneficiary in writing. Don’t rely on a phone call from the company that accounts are revised. Even if a court approved divorce decree states that a beneficiary should be changed, make sure you have changed the beneficiary designations. Remember, even a new Will does not change account beneficiaries on non-probate assets.
          Change passwords on all online accounts and notify them in writing that the former spouse is not permitted excess to records.
4)  Change your beneficiary under your own life insurance, whether whole life insurance or term insurance. Again, don’t just rely on language in a divorce decree to make sure your wishes are followed. If the ex-spouse is required to obtain life insurance to pay to you or your children, you want to see proof of the insurance in writing with beneficiary designation.
5)  Contact your employer's human resources and change the beneficiary on pension, stock options, life insurance,  and other employee benefits. Note that if you are not yet divorced, your spouse may have to sign a written waiver permitting you to change beneficiaries.
6)  Keep your personal papers at a location where an ex-spouse or the child's parent can't steal or destroy them. 
7)  If you have minor children, nominate someone under a Will to serve as guardian to the children. Although the surviving parent obviously has first right of custody of children, they may not even want custody. You don’t want your ex in-laws to have custody of your children or access to the children’s money. A new Will specifically shows a Surrogate and Probate Judge you’re your wishes are. If no Will, then a judge can only guess.
         Also set up a Trust in the Will so children and grandchildren receive funds when they are 21, 25 and 30. Preserve money for college and necessary expenses, not a windfall to buy an expensive car when they turn 18. Also don’t make the minor children beneficiary of big life insurance policies, because they automatically receive when they turn 18. Instead, you can make your estate the beneficiary of life insurance and other accounts. How many 18 year old kids would spend money wisely? Seek assistance of estate planning attorney, don’t try to do everything yourself.
         A trust also protects the beneficiary if there is a lawsuit and judgment against them.
8)  Make sure the trustee for any funds designated for your children is the "right" trustee. The former in laws may no longer be the best choice.
9) Re-title real estate, cars and other assets in joint names. Usually a new Deed will have to be prepared. If there is a mortgage, either a refinance or consent of mortgage company to remove your name from the mortgage. [Good luck with that.]
10)  In New Jersey, if you are still married and living with a spouse, under certain instances the surviving spouse has a right to "elect against the Will".      The disinherited spouse may try to elect against the Will and try to obtain one  third of the estate. Your attorney can explain how you can protect yourself and your children.     

11) Have a new Living Will / Advance Directive for health care/ medical proxy prepared to remove the ex and select a family member you trust with last medical wishes. The Living Will should contain new HIPPA language to advise doctors and hospital who should have access to medical information. You don’t want an estranged person to be able to make Medical decisions or “Pull the plug”. A divorce decree does not remove the ex-spouse on Medical Power of Attorney/ Living Will. They should have a new Living Will prepared.

Separated persons
          Some clients are not aware they can have a new Will and other estate planning documents prepared prior to a formal divorce decree. To the contrary, our office drafts Will for individuals in marital difficulty who want to protect their assets and children in the event of an unexpected, sudden death.  A personal can have a new Will and estate planning documents without telling their spouse.
          If spouses are living together, the surviving spouse in many states can Elect against the Will and obtain 1/3 of the augmented estate. See Uniform Probate Code 2-201. A married person can also confidentially revoke a Power of Attorney, Living Will, Trust etc. However, the original attorney cannot prepare new documents if the attorney also prepared documents for the other spouse. The original attorney in some states may be required to notify the other spouse. Therefore, a new, independent attorney is suggested whose only loyalty is to you.
          It is important to prepare new documents if separation has started or is inevitable since someone does not want their some of be ex to make financial and medical decisions. However, typically a spouse cannot be removed as a beneficiary under pensions, etc without that spouse’s written consent.
          You can select a funeral agent so your estranged spouse does not handle funeral arrangements.
          Also speak with your divorce attorney to inquire if you can take out 50%  of assets in a joint account and deposit in a new account payable death to adult children, not the estranged spouse.
          If you own a small business, prepare a contingency plan if you become disabled for someone to run your business.

          Second marriage
         If you decide to get remarried, have your attorney prepare a prenuptial agreement, so your children can inherit your assets.  You want your children, not new spouse, to receive your assets if you pass away. In many states, persons put their assets into Trusts for the benefit of a child. However, if the trust is revocable, Medicaid will include the trust assets as available money. In blended families, irrevocable trusts are useful because a Will can be revocable by a competent person without telling their spouse.

          If You Have No Will after someone divorces:                               
          If you leave no Will or your Will is declared invalid because it was improperly prepared or is not admissible to probate:

1. People you dislike or people who dislike and ignore you may get some of your assets or control assets. If you are not divorced and die without a Will, under the uniform probate code your spouse will receive 100%  of your estate if all the children are from the same relationship. State law determines who gets assets, not you.
2. If you have minor children, the County Surrogate will hold the child’s money until age 18 and it is difficult and time consuming to petition the Surrogate to release funds for payment of tuition, medical bills, clothing etc.
3. Additional expenses will be incurred and extra work will be required to qualify an administrator-Surety Bond, additional costs and legal fees
4. You Lose the opportunity to work with your attorney to try to reduce Estate Tax, State inheritance taxes and Federal estate taxes
5. A Judge determines who gets custody of minor children. A greedy brother or crazy mother in law could ask the court for custody. The parent of your children may try to control the assets of your children and not properly spend the money
6. It probably will cause fights and lawsuits within your family
        There may come a time when an unmarried parent is unable, due to physical or mental incapacity, to take care of their minor children. If a parent dies, the minor children will need a guardian. In these circumstances, those caring for the children, as well as the courts will need direction. By writing and executing a Will, which includes instructions on guardianship one may select someone, either individually or jointly, with the legal authority to act for minor children and assume control over the assets of the children. Estate planning, which includes the execution of a Will, is just as important for persons with minor children as they are for senior citizens.

     Most individuals appoint the parent to act as Guardian of the person and property of their minor children. It is suggested that your Will include a clause which provides that in the event the other parent predeceases you, or is unsuitable or ceases to act as Guardian of the person and property of your minor children, you appoint a trusted family member or close friend to act as successor Guardian of the person and property of your minor children.
          Sometimes the divorce is amicable and the person may still wish to have their ex –spouse be executor of their Will or Trustee of a trust for children. New estate planning documents should still be signed after the divorce to confirm they want to ex to remain involved in a potential estate.

Trustee for funds
     Select a trusted person, your close relative or friends, who will invest and hold your children's money. If divorced or unmarried, most people do not select the other parent. In your Will and Trust you can instruct the Trustee to apply amounts of income and principal as they, in their sole discretion, deem proper for the health, maintenance, education, welfare, or support of your children or other minors. Direct that the trustee shall accumulate any income not needed for the above purposes, paying and transferring the portion held in trust to the beneficiary upon his or her attaining the age of majority or whichever age you select. 


        While the preceding article contains possible items to be discussed with your family, attorney  and executor, the article is by no means exhaustive.  A number of these items may not be applicable in your situation, and probably there are many others that are applicable.  The essential element is to spend some time now considering what you should tell those most closely associated with you to facilitate their handling of your affairs upon your death.

Monday, January 11, 2016

E485: 1. 2016 update Wills and Estate Planning- Free Seminar, January 13, 2016; Wednesday 12:15PM-1PM and again 5:15PM-6PM at the Law Office of Kenneth Vercammen, 2053 Woodbridge Ave, Edison, NJ 08817. 2. Major Change in law permits car search if police have probable cause to believe that the vehicle contains contraband or evidence of crime. Warrantless auto search permitted on probable cause in lengthy opinion.

Kenneth Vercammen, Attorney at Law

January 8, 2016

In this Issue:
1. 2016 update Wills and Estate Planning- Free Seminar, January 13, 2016; Wednesday 12:15PM-1PM and again 5:15PM-6PM at the Law Office of Kenneth Vercammen, 2053 Woodbridge Ave, Edison, NJ 08817.

2. Major Change in law permits car search if police have probable cause to believe that the vehicle contains contraband or evidence of crime. State v. Witt __ NJ __ (2015) Warrantless auto search permitted on probable cause in lengthy opinion.    

1. 2016 update Wills and Estate Planning- Free Seminar, January 13, 2016; Wednesday 12:15PM-1PM and again 5:15PM-6PM at the Law Office of Kenneth Vercammen, 2053 Woodbridge Ave, Edison, NJ 08817.
COST: Free if you pre-register by email. Complimentary materials will be provided at 12:00PM Sharp.  We previously held this seminar for the Metuchen and Edison Adult Schools.  The program is limited to 15 people.  Please bring a canned food donation, which will be given to a community food bank.  For attorneys, a more detailed program will be held April 18th from 5:00PM to 9PM at the NJ Law Center. Please email us if you plan on attending or if you would like us to email the materials.
SPEAKER: Kenneth Vercammen, Esq.
              (Author-Answers to Questions About Probate)
     The NJ Probate Law made a number of substantial changes in Probate and the administration of estates and trusts in New Jersey.
2. Major Change in law permits car search if police have probable cause to believe that the vehicle contains contraband or evidence of crime. State v. Witt __ NJ __ (2015) Warrantless auto search permitted on probable cause.
       The NJ Supreme Court Held: exigent-circumstances standard set forth in Pena-Flores is unsound in principle and unworkable in practice. Citing Article I, Paragraph 7 of New Jersey's State Constitution, the Court returns to the standard articulated in State v. Alston, 88 N.J. 211 (1981), for warrantless searches of automobiles based on probable cause: The automobile exception authorizes the warrantless search of an automobile only when the police have probable cause to believe that the vehicle contains contraband or evidence of an offense and the circumstances giving rise to probable cause are unforeseeable and spontaneous.
In this appeal, the Court addresses the constitutional standard governing an automobile search and considers whether to continue to follow the standard set forth in State v. Pena-Flores, 198 N.J. 6 (2009). 
Defendant William L. Witt was charged in an indictment with second-degree unlawful possession of a firearm and second-degree possession of a weapon by a convicted person. The police initiated a stop of defendant's car because he did not dim his high beams when necessary, and a search of his vehicle uncovered the handgun. 
Defendant moved to suppress the gun on the ground that the police conducted an unreasonable search in violation of the New Jersey Constitution. Defendant's sole argument was that the police did not have exigent circumstances to justify a warrantless search of his car under Pena-Flores. At the suppression hearing, Officer Racite testified that at approximately 2:00 a.m., while providing backup for a motor-vehicle stop, he observed a car pass with its high beams on. 
The officer explained that a car must dim its high beams "as vehicles approach." Thus, Officer Racite stopped the vehicle, and requested backup. Defendant, the driver, appeared intoxicated and was asked to exit his car. Defendant then failed field-sobriety and balance tests, and Officer Racite arrested him for driving while intoxicated. Defendant was handcuffed and placed in the back of a patrol car. While Officer Racite searched defendant's vehicle for "intoxicants," he found a handgun in the center console. With Pena-Flores as its guide, the trial court found as follows: the officer had a right to stop defendant's car based on an "unexpected" occurrence and had probable cause to search for an open container of alcohol, but did not have "sufficient exigent circumstances" to conduct a warrantless search. Accordingly, the court suppressed the handgun. 
       The Appellate Division granted the State's motion for leave to appeal and affirmed the suppression of the gun "because of the utter absence of any exigency to support the warrantless vehicle search that occurred," and "because there was no justification for this motor vehicle stop." 435 N.J. Super. 608, 610-11 (App. Div. 2014). The panel declined to address the State's argument that the exigent-circumstances test in Pena-Flores "should be replaced because it has proved to be unworkable and has led to unintended negative consequences," explaining that, as an intermediate appellate court, it had no authority to replace Pena-Flores with some other legal principles.

        The panel also agreed with defendant's argument, raised for the first time on appeal, that Officer Racite did not have a reasonable and articulable suspicion to stop defendant because the relevant statute (N.J.S.A. 39:3-60) requires drivers to dim their high beams only when approaching an oncoming vehicle within 500 feet.
          Resolution of the issue before the Court implicates the doctrine of stare decisis. Because stare decisis promotes consistency, stability, and predictability in the development of legal principles and respect for judicial decisions, a "special justification" is required to depart from precedent. That said, stare decisis is not an inflexible principle depriving courts of the ability to correct their errors. Among the relevant considerations in determining whether to depart from precedent are whether the prior decision is unsound in principle and unworkable in practice. The Court, therefore, turns to consider whether Pena-Flores is furthering the constitutional values that are protected by the New Jersey Constitution and whether there is "special justification" for departing from it.  
      The use of telephonic search warrants has not resolved the difficult problems arising from roadside searches, as the Court expected when it decided Pena-Flores. Prolonged encounters on the shoulder of a crowded highway may pose an unacceptable risk of serious bodily injury and death to both police officers and citizens. Moreover, the seizure of the car and the motorist's detention may be a greater intrusion on a person's liberty interest than the search is on a person's privacy interest. Finally, the dramatic increase in the number of consent searches since Pena-Flores is apparently an unintended consequence of that decision, reflecting the difficulty presented to police officers by the Pena-Flores multi-factor exigent-circumstances standard. The Court is concerned about consent searches in such great numbers, particularly in light of the historic abuse of such searches and the coercive effect of a search request made to a motorist stopped on the side of a road. The Court, therefore, concludes that the current approach to roadside searches premised on probable cause places significant burdens on law enforcement without any real benefit to the public. 
        Although the Court determines that the exigent-circumstances standard set forth in Cooke and Pena-Flores is unsound in principle and unworkable in practice, it does not adopt the federal standard for automobile searches because it is not fully consonant with the interests embodied in Article I, Paragraph 7 of the State Constitution. The Court returns to the Alston standard, which states that the automobile exception authorizes the warrantless search of an automobile only when the police have probable cause to believe that the vehicle contains contraband or evidence of an offense and the circumstances giving rise to probable cause are unforeseeable and spontaneous. The Court's decision limits the automobile exception to on-scene warrantless searches, unlike federal jurisprudence, which allows a police officer to conduct a warrantless search at headquarters merely because the officer could have done so on the side of the road. 
     The Court's decision is a new rule of law to be applied prospectively. Therefore, for purposes of this appeal, Pena-Flores is the governing law. However, going forward, the exigent-circumstances test in Cooke and Pena-Flores no longer applies, and the standard set forth in Alston for warrantless searches of automobiles based on probable cause governs. 

      The judgment of the Appellate Division is AFFIRMED, and the matter is REMANDED to the trial court for proceedings consistent with this opinion. 
      Editorial Assistance provided by Dhruv Patel.  Mr. Patel currently attends Rutgers University and is participating in Kenneth Vercammen's Winter Break Internship Program.
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Editorial Assistance Provided by Juhi Duggirala. Ms. Duggirala is participating in Ken Vercammen's Fall Internship Program and currently attends Kean University. 
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