Executor Duty and Responsibilities

Executor Duty and Responsibilities

At some point in time, you may be asked to serve as the executor of the estate of a relative or friend, or you may ask someone to serve as your executor. An executor’s job comes with many legal obligations. Under certain circumstances, an executor can even be held personally liable for unpaid estate taxes. Lets review the major duties involved, which we’ve set out below.

In General, the executor’s job is to

1. Administer the estate--i.e., collect and manage assets, file tax returns and pay taxes and debts--and 2. Distribute any assets or make any distributions of bequests, whether personal or charitable in nature, as the deceased directed (under the provisions of the will).

Lets take a look at some of the specific steps involved and what these responsibilities can mean. Chronological order of the various duties may vary.

Step 1: Probate. The executor must "probate" the will. Probate is a process by which a will is admitted. This means that the will is given legal effect by the court. The courts decision that the will was validly executed under state law gives the executor the power to perform his or her duties under the provisions of the will.

Step 2: Manage the Estate. The executor takes legal title to the assets in the probate estate. The probate court will sometimes require a public accounting of the estate assets. The assets of the estate must be found and may have to be collected. As part of the asset management function, the executor may have to liquidate or run a business or manage a securities portfolio. To sell marketable securities or real estate, the executor will have to obtain stock power, tax waivers, file affidavits, and so on.

Step 3: Take Care of Tax Matters. The executor is legally responsible for filing necessary income and estate-tax returns (federal and state) and for paying all death taxes (i.e., estate and inheritance). The executor can, in some cases be held personally liable for unpaid taxes of the estate. Tax returns that will need to be filed can include the estates income tax return (both federal and state), the federal estate-tax return, the state death tax return (estate and/or inheritance), and the deceased’s final income tax return (federal and state). Taxes usually must be paid before other debts. In many instances, federal estate-tax returns are not needed as the size of the estate will be under the amount for which a federal estate-tax return is required.

An employer identification number ("EIN") should be obtained for the estate; this number must be included on all returns and other tax documents having to do with the estate. The executor should also file a written notice with the IRS that he/she is serving as the fiduciary of the estate. This gives the executor the authority to deal with the IRS on the estates behalf.

Often it is necessary to hire an appraiser to value certain assets of the estate, such as a business, pension, or real estate, since estate taxes are based on the "fair market" value of the assets. After the filing of the returns and payment of taxes, the Internal Revenue Service will generally send some type of estate closing letter accepting the return. Occasionally, the return will be audited.

Step 4: Pay the Debts. The claims of the estates creditors must be paid. Sometimes a claim must be litigated to determine if it is valid. Any estate administration expenses, such as attorneys, accountants and appraisers fees, must also be paid.

Step 5: Distribute the Assets. After all debts and expenses have been paid, the distribute the assets with extra attention and meticulous bookkeeping by the executor. Frequently, beneficiaries can receive partial distributions of their inheritance without having to wait for the closing of the estate.

WHO SHOULD SERVE AS EXECUTOR? The executors legally imposed fiduciary duty is to act in all ways in the best interests of the estate and its beneficiaries. The duties of an executor can be difficult and challenging and should not be taken lightly.

We believe an executor needs not only the skills, training, and experience necessary to do the project--casual or part-time attention is not likely to achieve success.

Under increasingly complex laws and rulings, particularly with respect to taxes, an executor can be in charge for two or three years before the estate administration is completed. If the job is to be done without unnecessary cost and without causing undue hardship and delay for the beneficiaries of the estate, the executor should have an understanding of the many problems involved and an organization created for settling estates. In short, an executor should have experience.

Duty of Executor in Probate & Estate Administration

1. Conduct a thorough search of the decedents personal papers and effects for any evidence which might point you in the direction of a potential creditor;

2. Carefully examine the decedents checkbook and check register for recurring payments, as these may indicate an existing debt;

3. Contact the issuer of each credit card that the decedent had in his/her possession at the time of his/ her death;

4. Contact all parties who provided medical care, treatment, or assistance to the decedent prior to his/her death;

Your attorney will not be able to file the NJ inheritance tax return until it is clear as to the amounts of the medical bills and other expenses. Medical expenses can be deducted in the inheritance tax.

Under United States Supreme Court Case, Tulsa Professional Collection Services, Inc., v. Joanne Pope, Executrix of the Estate of H. Everett Pope, Jr., Deceased, the Personal Representative in every estate is personally responsible to provide actual notice to all known or "readily ascertainable" creditors of the decedent. This means that is your responsibility to diligently search for any "readily ascertainable" creditors.

Other duties/ Executor to Do

Bring Will to Surrogate

Apply to Federal Tax ID #

Set up Estate Account at bank (pay all bills from estate account)

Pay Bills

Notice of Probate to Beneficiaries (Attorney can handle)

If charity, notice to Atty General (Attorney can handle)

File notice of Probate with Surrogate (Attorney can handle)

File first Federal and State Income Tax Return [CPA- ex Marc Kane]

Prepare Inheritance Tax Return and obtain Tax Waivers (Attorney can handle)

File waivers within 8 months upon receipt (Attorney can handle)

Prepare Informal Accounting

Prepare Release and Refunding Bond (Attorney can handle)

Obtain Child Support Judgment clearance (Attorney will handle)

Lets review the major duties involved-

In General. The executors job is to (1) administer the estate--i.e., collect and manage assets, file tax returns and pay taxes and debts--and (2) distribute any assets or make any distributions of bequests, whether personal or charitable in nature, as the deceased directed (under the provisions of the Will). Lets take a look at some of the specific steps involved and what these responsibilities can mean. Chronological order of the various duties may vary.

Probate. The executor must "probate" the Will. Probate is a process by which a Will is admitted. This means that the Will is given legal effect by the court. The courts decision that the Will was validly executed under state law gives the executor the power to perform his or her duties under the provisions of the Will.

An employer identification number ("EIN") should be obtained for the estate; this number must be included on all returns and other tax documents having to do with the estate. The executor should also file a written notice with the IRS that he/she is serving as the fiduciary of the estate. This gives the executor the authority to deal with the IRS on the estates behalf.

Pay the Debts. The claims of the estates creditors must be paid. Sometimes a claim must be litigated to determine if it is valid. Any estate administration expenses, such as attorneys, accountants and appraisers fees, must also be paid.

Manage the Estate. The executor takes legal title to the assets in the probate estate. The probate court will sometimes require a public accounting of the estate assets. The assets of the estate must be found and may have to be collected. As part of the asset management function, the executor may have to liquidate or run a business or manage a securities portfolio. To sell marketable securities or real estate, the executor will have to obtain stock power, tax waivers, file affidavits, and so on.

Take Care of Tax Matters. The executor is legally responsible for filing necessary income and estate-tax returns (federal and state) and for paying all death taxes (i.e., estate and inheritance). The executor can, in some cases be held personally liable for unpaid taxes of the estate. Tax returns that will need to be filed can include the estates income tax return (both federal and state), the federal estate-tax return, the state death tax return (estate and/or inheritance), and the deceased’s final income tax return (federal and state). Taxes usually must be paid before other debts. In many instances, federal estate-tax returns are not needed as the size of the estate will be under the amount for which a federal estate-tax return is required.

Often it is necessary to hire an appraiser to value certain assets of the estate, such as a business, pension, or real estate, since estate taxes are based on the "fair market" value of the assets. After the filing of the returns and payment of taxes, the Internal Revenue Service will generally send some type of estate closing letter accepting the return. Occasionally, the return will be audited.

Distribute the Assets. After all debts and expenses have been paid, the executor will distribute the assets. Frequently, beneficiaries can receive partial distributions of their inheritance without having to wait for the closing of the estate.

Under increasingly complex laws and rulings, particularly with respect to taxes, in larger estates an executor can be in charge for two or three years before the estate administration is completed. If the job is to be done without unnecessary cost and without causing undue hardship and delay for the beneficiaries of the estate, the executor should have an understanding of the many problems involved and an organization created for settling estates. In short, an executor should have experience

At some point in time, you may be asked to serve as the executor of the estate of a relative or friend, or you may ask someone to serve as your executor. An executor’s job comes with many legal obligations. Under certain circumstances, an executor can even be held personally liable for unpaid estate taxes. Lets review the major duties involved, which we’ve set out below.

In General. The executors job is to (1) administer the estate--i.e., collect and manage assets, file tax returns and pay taxes and debts--and (2) distribute any assets or make any distributions of bequests, whether personal or charitable in nature, as the deceased directed (under the provisions of the Will). Lets take a look at some of the specific steps involved and what these responsibilities can mean. Chronological order of the various duties may vary.

Probate. The executor must "probate" the Will. Probate is a process by which a Will is admitted. This means that the Will is given legal effect by the court. The courts decision that the Will was validly executed under state law gives the executor the power to perform his or her duties under the provisions of the Will.

An employer identification number ("EIN") should be obtained for the estate; this number must be included on all returns and other tax documents having to do with the estate. The executor should also file a written notice with the IRS that he/she is serving as the fiduciary of the estate. This gives the executor the authority to deal with the IRS on the estates behalf.

Pay the Debts. The claims of the estates creditors must be paid. Sometimes a claim must be litigated to determine if it is valid. Any estate administration expenses, such as attorneys, accountants and appraisers fees, must also be paid.

Manage the Estate. The executor takes legal title to the assets in the probate estate. The probate court will sometimes require a public accounting of the estates assets. The assets of the estate must be found and may have to be collected. As part of the asset management function, the executor may have to liquidate or run a business or manage a securities portfolio. To sell marketable securities or real estate, the executor will have to obtain stock power, tax waivers, file affidavits, and so on.

Take Care of Tax Matters. The executor is legally responsible for filing necessary income and estate-tax returns (federal and state) and for paying all death taxes (i.e., estate and inheritance). The executor can, in some cases be held personally liable for unpaid taxes of the estate. Tax returns that will need to be filed can include the estates income tax return (both federal and state), the federal estate-tax return, the state death tax return (estate and/or inheritance), and the deceased’s final income tax return (federal and state). Taxes usually must be paid before other debts. In many instances, federal estate-tax returns are not needed as the size of the estate will be under the amount for which a federal estate-tax return is required.

Often it is necessary to hire an appraiser to value certain assets of the estate, such as a business, pension, or real estate, since estate taxes are based on the "fair market" value of the assets. After the filing of the returns and payment of taxes, the Internal Revenue Service will generally send some type of estate closing letter accepting the return. Occasionally, the return will be audited.

Distribute the Assets. After all debts and expenses have been paid, the distribute the assets with extra attention and meticulous bookkeeping by the executor. Frequently, beneficiaries can receive partial distributions of their inheritance without having to wait for the closing of the estate.

Under increasingly complex laws and rulings, particularly with respect to taxes, in larger estates an executor can be in charge for two or three years before the estate administration is completed. If the job is to be done without unnecessary cost and without causing undue hardship and delay for the beneficiaries of the estate, the executor should have an understanding of the many problems involved and an organization created for settling estates.

COMPLAINT FOR ACCOUNTING

A Complaint for Accounting is filed with the Probate Part to request on accounting, removal of the current executor and selection of a new person to administer and wrap up the estate.

A signed certification of one or more beneficiaries is needed. In addition, an Order to Show Cause is prepared by your attorney. The Order to Show Cause is to be signed by the Judge directing the executor, through their attorney, to file a written answer to the complaint, as well as appear before the court at a specific date and time.

As with a litigated court matter, trials can become expensive. Competent elder law/probate attorney may charge an hourly rate of $225-$350 per hour, with a retainer of $3000 needed. Attorneys will require the retainer to be paid in full up front.

The plaintiff can demand the following:

(1) That the named executor be ordered to provide an accounting of the estate to plaintiff.

(2) Defendant, be ordered to provide an accounting for all assets of d1 dated five years prior to death.

(3) Payment of plaintiffs attorneys fees and costs of suit for the within action.

(4) Declaring a constructive trust of the assets of the decedent for the benefit of the plaintiff and the estate.

(5) That the executor be removed as the executor/administrator of the estate and that p1 be named as administrator of the estate.

(6) That the executor be barred from spending any estate funds, be barred from paying any bills, be barred from taking a commission, be barred from writing checks, be barred from acting on behalf of the estate, except as specifically authorized by Superior Court Order or written consent by the plaintiff.

EXECUTORS COMMISSIONS

Executors are entitled to receive a commission to compensate them for work performed. Under NJSA 3B:18-1 et seq., Executors, administrators and other fiduciaries are entitled to receive a commission on both the principal of the estate, and the income earned by assets.

However, if you have evidence that the executor has breached their fiduciary duties or violated a law, your Superior Court accounting complaint can request that the commissions be reduced or eliminated.

SALE OF REAL ESTATE AND OTHER PROPERTY

Occasionally, a family member is living in a home owned by the decedent. To keep family harmony, often this family member is permitted to remain in the home temporarily. However, it may later become clear that the resident has no desire on moving, and the executor has neither an intention to make them move nor to sell the house. The remedy a beneficiary has can be to have your attorney include in the Superior Court complaint a count to

1) remove the executor

2) remove the tenant and make them pay rent to the estate for the time they used the real property since death without paying rent

3) compel the appraisal of the home and, thereafter, the sale of the property

4) make the executor reimburse the estate for the neglect or waste of assets.

It is our recommendation that Executors undertake the following measures:

       1.  Conduct a thorough search of the decedent's personal papers and effects for any evidence, which might point you in the direction of a potential creditor;

       2.  carefully examine the decedent's checkbook and check register for recurring payments, as these may indicate an existing debt;

       3.  contact the issuer of each credit card that the decedent had in his/her possession at the time of his/ her death;

       4.  contact all parties who provided medical care, treatment, or assistance to the decedent prior to his/her death;

       We will not be able to file the NJ Inheritance Tax return until it is clear as to the amounts of any medical bills and debts. Medical expenses can be deducted on the Inheritance Tax return.  

Other upcoming duties/ Executor to Do

Notice of Probate to Beneficiaries  (Attorney will handle)

If charity, notice to Atty General

File notice of Probate with Surrogate (Attorney will handle)

Apply to Federal Tax ID  if there will be several beneficiaries- Either Executor or Attorney can handle

Set up Estate Account at bank (pay all bills from estate account)

Type up list of all assets and all liabilities

Email list to beneficiaries if applicable

Pay Bills  

       List real estate for sale and have attorney prepare, Deed, Affidavit of title and other document

-If mortgage, contact mortgage company for payoff

File first Federal and State Income Tax Return [CPA- ex Marc Kane]

Prepare Inheritance Tax Return and obtain Tax Waivers (Attorney will handle)

Sell applicable assets

If house, select realtor to sell house “as is”

File NJ Tax waivers on real property with County Clerk (Attorney will handle)

Prepare Informal Accounting after assets sold

Prepare Release and Refunding Bond for all beneficiaries to sign (Attorney will handle)

   

Obtain Child Support Judgment clearance (Attorney will handle if needed)

File Release and Refunding Bond with Surrogate after all beneficiaries sign.

http://www.njlaws.com/executor-duties_and_responsibilties.html

KENNETH VERCAMMEN & ASSOCIATES, PC

ATTORNEY AT LAW

2053 Woodbridge Ave.

Edison, NJ 08817

(Phone) 732-572-0500

       Let's review the major duties involved, which we've set out below.

In General.The executor's job is to (1) administer the estate--i.e., collect and manage assets, file tax returns and pay taxes and debts--and (2) distribute any assets or make any distributions of bequests, whether personal or charitable in nature, as the deceased directed (under the provisions of the Will). Let's take a look at some of the specific steps involved and what these responsibilities can mean. Chronological order of the various duties may vary.

 Probate.The executor must "probate" the Will. Probate is a process by which a Will is admitted.  This means that the Will is given legal effect by the court.  The court's decision that the Will was validly executed under state law gives the executor the power to perform his or her duties under the provisions of the Will.

       An employer identification number ("EIN") should be obtained for the estate; this number must be included on all returns and other tax documents having to do with the estate.  The executor should also file a written notice with the IRS that he/she is serving as the fiduciary of the estate.  This gives the executor the authority to deal with the IRS on the estate's behalf.

  Pay the Debts.  The claims of the estate's creditors must be paid. Sometimes a claim must be litigated to determine if it is valid.  Any estate administration expenses, such as attorneys', accountants' and appraisers' fees, must also be paid.

  Manage the Estate.The executor takes legal title to the assets in the probate estate. The probate court will sometimes require a public accounting of the estate assets. The assets of the estate must be found and may have to be collected. As part of the asset management function, the executor may have to liquidate or run a business or manage a securities portfolio. To sell marketable securities or real estate, the executor will have to obtain stock power, tax waivers, file affidavits, and so on.   

  Take Care of Tax Matters.The executor is legally responsible for filing necessary income and estate-tax returns (federal and state) and for paying all death taxes (i.e., estate and inheritance). The executor can, in some cases be held personally liable for unpaid taxes of the estate. Tax returns that will need to be filed can include the estate's income tax return (both federal and state), the federal estate-tax return, the state death tax return (estate and/or inheritance), and the deceased's final income tax return (federal and state). Taxes usually must be paid before other debts. In many instances, federal estate-tax returns are not needed as the size of the estate will be under the amount for which a federal estate-tax return is required.

       Often it is necessary to hire an appraiser to value certain assets of the estate, such as a business, pension, or real estate, since estate taxes are based on the "fair market" value of the assets. After the filing of the returns and payment of taxes, the Internal Revenue Service will generally send some type of estate closing letter accepting the return.  Occasionally, the return will be audited.

Distribute the Assets.  Prior to individuals receiving money Federal law requires a child support lien search so each beneficiary will need to provide their Social Security number prior to inheritance. Your attorney can handle this, upon request. If child support is owed, and not deducted from the person's inheritance, the executor can be personally liable. Each beneficiary must sign a "Release and Refunding Bond". Otherwise, formal Court approval is required to finalize the estate. After all debts and expenses have been paid, the executor will distribute the assets. Frequently, beneficiaries can receive partial distributions of their inheritance without having to wait for the closing of the estate.  

Defense of Criminal charges

Defense of Criminal charges

        We provide all my clients with written information explaining how to appear in court, information on surcharges, information on points, and information regarding substance abuse treatment, if applicable.

Once we receive our retainer (are paid), we begin work right away. Usually while the client is still in the office, we prepare a discovery letter on the computer to the prosecutor/district attorney and court and hand a copy to the client. We occasionally call the court to advise them that we will be handling the case and to inquire who handles discovery. We check the Lawyers Diary to determine who are the judges and prosecutor/district attorneys for the county or town. It is important to learn about the judge and the prosecutor.

We require a great deal of cooperation from our clients in an effort to help keep their costs reasonable. We require our clients to take photographs of accident sites and prepare diagrams and provide us with the names, addresses, and telephone numbers of witnesses.

I recommend that my clients provide me with a list of between 10 to 15 reasons why they should not go to jail and why court should impose the minimum license suspension. We recommend they obtain a Motor Vehicle Abstract. This provides us with information for mitigation of penalties and also provides information to be considered by the judge in sentencing.

3. Post Interview Work

       Many states have programs for first time offenders who have never previously been arrested or previously convicted of a criminal offense. Again, to avoid embarrassment it is a good idea to speak with the prosecutor/ district attorney and the police officer because they may have a criminal abstract to indicate that the client is not eligible for a diversions type program.  We also make a Motion to Suppress where there is a question regarding the validity of a stop or search. Any other Motions to Dismiss should be made in writing such as statue of limitations or lack of jurisdiction.

       Oftentimes in cases that deal with just one triable issue such as the admissibility of a blood test result in alcohol or drugs, we can make a Motion in Limine or suggest a pre-trial conference. It is often a good idea to try to know how the judge will decide in order to save us a three-hour trial on a complicated case. If the court rules against us in the Motion in Limine we can enter a guilty plea contingent upon reserving your right to appeal on that one issue.

4. Discovery Phase

       Oftentimes we do not receive all of the discovery that we request. We send a letter to the prosecutor requesting additional discovery and request that the discovery be provided within 10 days. If we do not receive the discovery with 10 days then we prepare a Motion to Compel Discovery.

       In the case involving essential witnesses, we occasionally write to the witnesses and ask them to call us so that we can find out what really happened. If possible I have a law clerk call up after we send the initial letter. The attorney cannot testify if the witness provides an inconsistent statement but our law clerks can testify. I sometimes speak to friendly witnesses myself later to make a decision to determine whether or not the witnesses are credible. 

Upon receiving discovery, we forward a photocopy of all discovery to our client. We then discuss with the client whether or not they have a reasonable prospect of winning.

       

In drunk driving cases we review the videotape with the client prior to the trial date and sometimes make arrangements to retain an expert. 

5. Preparing for Court

       If it is a drug case, we should make an objection to the entry of the lab certificate as evidence at trial. We are also under a responsibility to provide any reciprocal discovery to the prosecutor. Occasionally, in a court where there is only one prosecutor you should call the criminal court prosecutor ahead of time to see if a matter can be worked out or plea bargained. Some Criminal prosecutors in lower courts work part time and are not compensated for the many telephone calls they get in their offices.        

       If we discover a favorable case, we make a copy for the judge, prosecutor, and client. Never assume the part time prosecutor or judge is familiar with all the laws. We can prepare a Subpoena ad Testificandum for witnesses to testify and Subpoena Duces Tecum for witnesses to bring documents.  We have our clients hand deliver the Subpoenas and write out their own check for the subpoena fees. It is better to be over-prepared than under-prepared. 

       Over the years I have made it a practice to build up files on particular legal subjects with complete case law. I now have files for drunk driving, driving while suspended, drug possession, assault, and careless driving. 

       When we receive the hearing notice we send a follow up reminder to the client to be on time, bring all papers and call 24 hours ahead to confirm the case is still on the calendar. The client should be prepared and look neat. The Grateful Dead and Budweiser T-Shirts should be replaced with something that looks presentable. They should have their pregnant wives sitting next to them.     

       Preparation is the key to winning cases or convincing the prosecutor of exceptional defenses. Upon arrival at court, we will attempt to ascertain if the police officer is available. Sometimes the police officer is on vacation, retired, or suspended. This may assist your ability to work out a satisfactory arrangement. 

       There is no prohibition against speaking with States witnesses in a non-threatening way. Outside of the courtroom, I usually call out the name of the non-law enforcement States witnesses to determine what their version of the facts are. If we have an excellent trial issue but believe the judge is going to rule against us, we bring an appeal notice and file it with the Court on the Record. I keep in my car blank forms for Order to Compel Discovery, Order Mark Try or Dismiss, Order to be Relieved, and an Appeal Notice.

6. Plea to a Lesser Defense

       If the client is going to enter a guilty plea to an offense, it is important they understand what the offense is and put a factual basis on the record.  The Judge will be angry if a person is pleading guilty to a drunk driving case and the judge asked them what he had to drink, the person insists he only had one beer. The judge will send us back to our seat and must refuse to take the guilty plea unless an adequate factual basis is put on the record. 

       

Having previously obtained for my clients their favorable background, I usually put on the record reasons why the judge should give them the minimum penalties.  

       

Letters of reference and character reference letters are helpful in cases where the judge has wide discretion in his sentencing. After the client pleads guilty, it is a good idea to also ask the client on the record if he has any questions of myself or of the court. 

7. Conclusion 

              

Whether or not we have a trial or there is a plea to reduce the charge, I wish to walk out knowing I did the best you could for the client. Even if I lose, I want to have been such an articulate advocate that the client walks out saying my attorney is great but the judge is wrong. We try to be innovative and prepare new arguments. We handle a substantial amount of criminal court and personal injury cases and have put case law and certain legal defenses on our website: www.NJLaws.com. 

       About the Author: Kenneth A. Vercammen is an Edison, Middlesex County trial attorney who has published 125 articles in national and New Jersey publications on criminal court and litigation topics. 

Elective share of surviving spouse in New Jers

Elective share of surviving spouse in New Jersey

   What is my share of my spouse's estate if I elect to take against the will of my deceased spouse? 

       In general, a surviving spouse dissatisfied with his or her share under the Will of the deceased spouse may renounce the will and elect to take his or her statutory share of the testator’s entire estate. The surviving spouse is entitled to one-third of the estate provided that at the time of death, the surviving spouse and decedent had not been living separate and apart in different habitations. Generally, the surviving spouse must elect to take his/her elective share by filing a complaint within six months after the appointment of a personal representative of the decedent's estate. 

       Whether to elect to take against a Will is a decision that cannot be made without comprehensive information regarding the affairs of the spouses. This is not a matter for self-help and referral to an attorney familiar with estate administration is normally required.

       The following is the revised New Jersey Law on Elective share of surviving spouse

       Godfrey Statutes in support of Elective Share 

   

3B:8-1 Elective share of surviving spouse or domestic partner of person dying domiciled in this State;  conditions.

     Elective share of surviving spouse or domestic partner of person dying domiciled in this State; conditions.

   If a married person or person in a domestic partnership dies domiciled in this State, on or after May 28, 1980, the surviving spouse or domestic partner has a right of election to take an elective share of one-third of the augmented estate under the limitations and conditions hereinafter stated, provided that at the time of death the decedent and the surviving spouse or domestic partner had not been living separate and apart in different habitations or had not ceased to cohabit as man and wife, either as the result of judgment of divorce from bed and board or under circumstances which would have given rise to a cause of action for divorce or nullity of marriage to a decedent prior to his death under the laws of this State.

   Amended 2005, c.331, s.7.

   3B :8-3 .  Meaning of "augmented estate."

   The "augmented estate" means the estate reduced by funeral and administration expenses, and enforceable claims, to which is added the value of property transferred by the decedent at any time during marriage, or during a domestic partnership, to or for the benefit of any person other than the surviving spouse or domestic partner, to the extent that the decedent did not receive adequate and full consideration in money or money's worth for the transfer, if the transfer is of any of the following types:

   a.   Any transfer made after May 28, 1980, under which the decedent retained at the time of his death the possession or enjoyment of, or right to income from, the property;

   b.   Any transfer made after May 28, 1980, to the extent that the decedent retained at the time of his death a power, either alone or in conjunction with any other person, to revoke or to consume, invade or dispose of the principal for his own benefit;

   c.   Any transfer made after May 28, 1980, whereby property is held at the time of decedent's death by decedent and another with right of survivorship;

   d.   Any transfer made, after May 28, 1980, if made within 2 years of death of the decedent, to the extent that the aggregate transfers to any one donee in either of the years exceed $3,000.00.

   Amended 2005, c.331, s.9.

3B:8-4.  Valuing property transferred

    Property transferred in the manner set forth in N.J.S. 3B:8-3 is valued as of the decedent's death except that property given irrevocably to a donee during the lifetime of the decedent is valued as of the date the donee came into possession or enjoyment of the property if that occurs first.

3B:8-5.  Transfers excluded.

   Any transfer of property shall be excluded from the augmented estate under N.J.S. 3B:8-3, if made with the written consent or joinder of the surviving spouse or domestic partner.  There shall also be excluded from the augmented estate any life insurance, accident insurance, joint annuity or pension payable to a person other than the surviving spouse or domestic partner.

   3B :8-6 .  Other property to be included in augmented estate.

   There shall also be included in the augmented estate:

   a.   The value of property owned by the surviving spouse or domestic partner at the time of, or as a result of, the decedent's death to the extent that the property is derived from the decedent by means other than by testate or intestate succession without a full consideration in money or money's worth; and

   b.   The value of the property described in subsection a. hereof which has been transferred by the surviving spouse or domestic partner at any time during marriage or domestic partnership without a full consideration in money or money's worth to any person other than the decedent which would have been includable in the spouse's or domestic partner's augmented estate if the surviving spouse or domestic partner had predeceased the decedent.

   Income earned by included property prior to the decedent's death is not treated as property derived from the decedent.

   Amended 2005, c.331, s.11.

NJSA 3B:8-7. Property derived from decedent.

For the purposes of N.J.S. 3B:8-6, property derived from the decedent includes, but is not limited to, any beneficial interest of the surviving spouse or domestic partner in a trust created by the decedent during his lifetime, any property appointed to the spouse or domestic partner by the decedent's exercise of a general or special power of appointment also exercisable in favor of others than the spouse or domestic partner, any proceeds of insurance, including accidental death benefits on the life of the decedent attributable to premiums paid by him, any lump sum immediately payable and the commuted value of the proceeds of annuity contracts under which the decedent was the primary annuitant attributable to premiums paid by him, the commuted value of amounts payable after the decedent's death under any public or private pension, disability compensation, death benefit or retirement plan, exclusive of the Federal Social Security system, by reason of service performed or disabilities incurred by the decedent, the value of the share of the surviving spouse or domestic partner resulting from rights in community property acquired in any other state formerly owned with the decedent and the value of any rights of dower and curtesy. Premiums paid by the decedent's employer, his partner, a partnership of which he was a member, or his creditors, are deemed to have been paid by the decedent.

3B:8-8.† Valuation of property derived from decedent.

For the purposes of valuing property derived from the decedent as provided in N.J.S. 3B:8-6:

a. Property owned by the spouse or domestic partner at the decedent's death is valued as of the date of decedent's death; and

b. Property transferred by the spouse or domestic partner is valued at the time the transfer became irrevocable, or at the decedent's death, whichever occurs first.

3B:8-9.† Presumption as to property owned or previously transferred by spouse or domestic partner at decedent's death.

Property owned by the surviving spouse or domestic partner as of the decedent's death, or previously transferred by the surviving spouse or domestic partner, is presumed to have been derived from the decedent except to the extent that any party in interest establishes that it was derived from another source.

3B:8-10.† Waiving right to an elective share.

The right of election of a surviving spouse or domestic partner and the rights of the surviving spouse or domestic partner may be waived, wholly or partially, before or after marriage before, on or after May 28, 1980, by a written contract, agreement or waiver, signed by the party waiving after fair disclosure. Unless it provides to the contrary, a waiver of "all rights" (or equivalent language) in the property or estate of a present or prospective spouse or domestic partner or a complete property settlement entered into after or in anticipation of separation, divorce or termination of a domestic partnership is a waiver of all rights to an elective share by each spouse or domestic partner in the property of the other and a renunciation by each of all benefits which would otherwise pass to him from the other by intestate succession or by virtue of the provisions of any will executed before the waiver or property settlement.

3B:8-11.† Who may exercise the right to take an elective share.

The right of election to take an elective share by a surviving spouse or domestic partner may be exercised only during his lifetime.† In the case of a surviving spouse or domestic partner for whom the court has appointed a guardian to manage his estate, the right of election may be exercised only by order of the court making the appointment after finding that the election is necessary to provide adequate support of the surviving spouse or domestic partner during his probable life expectancy.

Amended 2005, c.331, s.16.

†

3B:8-12 Filing complaint for elective share; extension of time.

The surviving spouse or domestic partner may elect to take his elective share in the augmented estate by filing a complaint in the Superior Court within 6 months after the appointment of a personal representative of the decedent's estate.† The court may, before the time for election has expired and upon good cause shown by the surviving spouse or domestic partner, extend the time for election upon notice to persons interested in the estate and to distributees and recipients of portions of the augmented estate whose interests will be adversely affected by the taking of the elective share.

   3B :8-13 .  Notice of hearing.

   The surviving spouse or domestic partner shall give notice of the time and place set for hearing to persons interested in the estate and to the distributees and recipients of portions of the augmented estate whose interests will be adversely affected by the taking of the elective share.

   Amended 2005, c.331, s.18.

3B:8-14† Withdrawal of demand for an elective share.

.The surviving spouse or domestic partner may withdraw his demand for an elective share at any time before entry of a final judgment by the court.

†

3B:8-15.† Fixing amount of elective share;† payment of elective share

††† The court shall determine the amount of the elective share and shall order its payment from the assets of the augmented estate or by contribution as appears appropriate in the manner as hereinafter set forth in this chapter. If† it appears that a fund or property included in the augmented estate has not† come into the possession of the personal representative, or has been distributed by the personal representative, the court nevertheless shall fix the liability of any person who has any interest in the fund or property or who† has possession thereof, whether as trustee or otherwise.† The proceeding may be† maintained against fewer than all persons against whom relief could be sought,† but no person is subject to contribution in any greater amount than he would† have been if relief had been secured against all persons subject to contribution.

3B:8-16.† Enforcing judgment

††† The judgment of the court made pursuant to N.J.S. 3B:8-15 may be enforced as† other judgments are enforced by law.

3B:8-17.† Value of surviving spouse's or domestic partner's interest in any life estate.

In an action for an elective share, the electing spouse's or domestic partner's total or proportional beneficial interest in any life estate in real or personal property or in any trust shall be valued at one-half of the total value of the property or trust or of the portion of the property or trust subject to the life estate.

3B:8-18.† Satisfaction of elective share.

The amount of the surviving spouse's or domestic partner's elective share shall be satisfied by applying:

a. The value of all property, estate or interest therein, owned by the surviving spouse or domestic partner in his own right at the time of the decedent's death from whatever source acquired, or succeeded to by the surviving spouse or domestic partner as a result of decedent's death notwithstanding that the property, estate or interest or part thereof, succeeded to by the surviving spouse or domestic partner as the result of decedent's death has been renounced by the surviving spouse or domestic partner;

b. The value of the property described in subsection b. of N.J.S. 3B:8-6, and

c. The remaining property of the augmented estate is so applied that liability for the balance of the elective share of the surviving spouse or domestic partner is equitably apportioned among the recipients of the augmented estate in proportion to the value of their interests therein.

3B:8-19 Persons subject to contribution.

     Only original transferees from, or appointees of, the decedent and their donees, to the extent the donees have the property or its proceeds, are subject to the contribution to make up the elective share of the surviving spouse or domestic partner.† A person liable to contribution may choose to give up the property transferred to him or to pay its value as fixed in the manner provided in N.J.S. 3B:8-4.

Edison Library New NJ Estate Tax Law, Wills, & Estate Seminar October 2, 2018

    Edison Library

New NJ Estate Tax Law, Wills, & Estate Seminar 

October 2, 2018 at 7pm  Free community program

  Edison Library Main Branch 340 Plainfield Ave. Edison, NJ 08817  

WILLS & ESTATE ADMINISTRATION- PROTECT YOUR FAMILY AND MAKE PLANNING EASY

SPEAKER: Kenneth Vercammen, Esq. Edison, NJ

               Author- Wills & Estate Administration ABA

     The January 1, 2018 New Estate Tax law changes administration of estates and trusts in New Jersey. 

Main Topics:

 1. NJ Estate Tax eliminated for 2018 & NJ Veterans Tax exemption of up to $3,000

2. The 2018 changes in Federal Estate and Gift Tax  

3. The new Digital Fiduciary Act & New law permits Executor to resign if all parties consent

4. Power of Attorneys      

5.  Living Will           

6.  Administering the Estate/ Probate/Surrogate

7. Avoiding unnecessary expenses

       You do not need to be an Edison resident to attend.

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

For info call 732-287-2298 x 228

To register go to http://www.edisonpubliclibrary.net/index-ek.shtml

Facebookhttps://www.facebook.com/events/247992682678647/

       

    FREE WILL SEMINARS AND SPEAKERS BUREAU for community groups

       The AARP Network Attorneys of the Edison/Metuchen/East Brunswick area had established a community Speakers Bureau to provide educational programs to AARP and senior clubs, Unions and Middlesex County companies. During the past year, volunteer attorneys of the Middlesex County Estate Planning Council have provided Legal Rights Seminars to hundreds of seniors, business owners and their employees, unions, clubs and non-profit groups. These quality daytime educational programs will educate and even entertain. Clubs and companies are invited to schedule a free seminar.For other organizations to schedule a Will Seminar, please callKenneth Vercammen Law Office at (732) 572-0500, email VercammenLaw@njlaws.com

       Kenneth Vercammen is a trial attorney in Edison, NJ. Ken is author of the ABA’s book “Wills and Estate Administration.” He is co-chair of the American Bar Association’s Probate & Estate Planning Law Committee of the American Bar Association Solo Small Firm Division.  Ken is a speaker for the NJ State Bar Association at the annual Nuts & Bolts of Elder Law & Estate Administration program. 

      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.comwhich 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 

A Will is presumed valid

A Will is presumed valid

In any attack upon the validity of a Will, it is generally presumed that "the testator was of sound mind and competent when he executed the Will." Gellert v. Livingston, 5 N.J. 65, 71 (1950). If there is a challenge to the Will, the Court will look to 

-who drafted the Will- example, was the Will drafted by a reputable attorney or a cheap homemade document [Will was prepared by Brian T. Keane Esq., a member of National Academy of Elder Law Attorneys, New Jersey Bar Association, The Florida Bar, Bergen County Bar Association.]

-did the person who typed the Will follow the instruction of the testator or the person who benefits from the Will [Mr. Loeffelman’s wife does not know Atty Keane]

who were the witnesses- example- employees of the attorney independent witnesses, friends of the testator, or friends of the persons who benefited [Witnesses were staff of Brian T. Keane Esq.]

The burden of establishing lack of testamentary capacity is on the one who contests the Will being offered for probate. This burden must be sustained by clear and convincing evidence. In re Hoover, 21 N.J. Super. 323, 325 (App. Div. 1952). Furthermore, it is incumbent upon the caveator to establish lack of capacity at the time the Will was executed. Gellert v. Livingston, 5 N.J. 65, 76 (1950). Indeed, he must show that the disputed will was *4 the product of the decedent's insanity. In re Strittmater, 140 N.J. Eq. 94, 95 (E. & A. 1947).

"The burden of proving undue influence is upon the person asserting it and it must be clearly established." Gellert v. Livingston, supra,5 N.J.at 71; In re Will of Liebl, 260 N.J. Super.519, 527 (App. Div. 1992).If a Will is tainted by "undue influence," it may be overturned. 

"Undue influence" has been defined as "mental, moral or physical" exertion which has destroyed the "free agency of a testator" by preventing the testator "from following the dictates of his own mind and will and accepting instead the domination and influence of another." Gellert,supra, 5 N.J.at 71; In re Blake’s Will, 21 N.J.50, 55-56 (1956); In re Dodge, 50 N.J.192 (1967); Haynes v. First National State Bank, 87 N.J.176 (1981); Pascale v. Pascale, 113 N.J.20 (1988). 

When such a contention is made the burden of proving undue influence lies upon the contestant unless the Will benefits one who stood in a confidential relationship to the testatrix and there are additional circumstances of a suspicious character present, which require explanation. Id.In such case the law raises a presumption of undue influence and the burden of proof is shifted to the proponent. Id.

         Two elements are necessary to create a presumption of undue influence. The first element necessary to raise a presumption of undue influence, a "confidential relationship" between the testator and a beneficiary, arises where trust is reposed by reason of the testator's weakness or dependence or where the parties occupied relations in which reliance is naturally inspired or in fact exists. The law governing undue influence is well established. While we generally presume that the testator is of sound mind and competent to execute a Will, Gellert v. Livingston, 5 N.J. 65, 71 (1950), even a Will which on its face appears to have been validly executed can be overturned upon a demonstration of undue influence. Haynes v. First Nat'l State Bank, 87 N.J. 163, 175-76 (1981). Similarly, an inter vivos transfer, as was this trust, is equally governed by the undue influence analysis. In re Dodge, 50 N.J. 192, 227-29 (1967); see Pascale v. Pascale,113 N.J. 20, 29-31 (1988).

           Undue influence is "defined as 'mental, moral or physical' exertion which has destroyed the 'free agency of a testator' by preventing the testator 'from following the dictates of his own mind and will and accepting instead the domination and influence of another.'" Haynes v. First Nat'l State Bank, supra, 87 N.J. at 176 (quoting In re Neuman, 133 N.J. Eq. 532, 534 (E. & A. 1943)). Where the Will benefits one who enjoyed a confidential relationship with the testator, and where there are suspicious circumstances surrounding the Will, the law presumes undue influence and the burden is upon the proponent of the Will to disprove the presumption.In re Rittenhouse's Will, 19 N.J. 376, 378-79 (1955).

             

       Under influence was explained in In Re Probate of the Last Will and Testament of Catelli361 N.J. Super.478 (App. Div. 2003), Thomas was named executor of his Aunts Estate. The Aunt had a stroke and limited ability to speak and see and was paralyzed. Thomas had a power of attorney which he used to gift himself and his wife $10,000 and later created a trust which he used to his benefit. 

The Court found the combination of the confidential relationship and the suspicious circumstances was more than sufficient to shift the burden to Thomas. The judge pointed to the fact that Thomas retained his own attorney to prepare the trust, where he knew his Aunt had an attorney, he prepared the documents without consultation to the testator, the documents were markedly different than what was provided for in the testator’s Will, the testator of debilitated and vulnerable, the effect of the documents immediately vested control of all assets of testator through and intervivos gift, and he dispensed substantial gifts through himself and his family. Thomas was unable to prove by a preponderance of the evidence that he did not assert undue influence on the testator.

     There is a legal presumption that "the testator was of sound mind and competent when he executed the Will." Haynes v. First Nat'l State Bank of N.J., 87 N.J.163, 175-76 (1981) (quoting Gellert v. Livingston, supra, 5 N.J.at 71); In re Hoover,supra, 21 N.J.Super.at 325. The gauge of testamentary capacity is "whether the testator can comprehend the property he is about to dispose of; the natural objects of his bounty; the meaning of the business in which he is engaged; the relation of each of the factors to the others, and the distribution that is made by the Will." Gellert v. Livingston, supra, 5 N.J.at 73. 

Testamentary capacity is to be tested at the date of the execution of the Will. Id.at76. Furthermore, "as a general principle, the law requires only a very low degree of mental capacity for one executing a Will." In re Rasnick, 77 N.J. Super.380, 394 (Cty. Ct. 1962); seeLoveridge v. Brown, 98 N.J.Eq.381, 387 (E. & A.1925). "The burden of establishing a lack of testamentary capacity is upon the one who challenges its existence and that burden must be sustained by clear and convincing evidence." In re Hoover, supra, 21 N.J. Super.at 325; accordIn re Rasnick, supra, 77 N.J. Super.at 395. A testator's misconception of the exact nature or value of his assets will not invalidate a Will where there is no evidence of incapacity. SeeIn re Livingston's Will, 37 A.770, 772 (Prerog. 1897); McCoon v. Allen, 45 N.J.Eq.708, 719 (Prerog. Ct. 1889); Collins v. Osborn, 34 N.J.Eq.511, 520 (Prerog. Ct. 1881). "Even an actual mistake by a testator as to the extent of his property does not show as a matter of law that he was wanting in testamentary capacity." 79 Am.Jur.2d Wills s. 72 at 331 (1975). Rather, a testator need only know that his property is worth some value and have a general estimate as to the nature of his estate. Ibid. "It is not ignorance of the kind or amount of property owned by the testatrix which invalidates [a] Will, but ignorance resulting from a mental incapacity to comprehend the kind and amount of such property." In re Livingston's Will, supra.

                                                      Respectfully submitted,

                                                      KENNETH  VERCAMMEN

  Copyright 2018 Vercammen Law