Kenneth Vercammen Law Office. (732)572-0500. Edison, NJ. Kenneth Vercammen is a Middlesex County trial attorney who has published 130 articles in national and NJ publications on Criminal Law and litigation topics. He is author of the ABA book “Wills and Estate Administration”. To schedule a confidential consultation, call (732) 572-0500
Kenneth Vercammen & Associates, P.C. 2053 Woodbridge Avenue - Edison, NJ 08817


Monday, November 21, 2016

Removing an Executor of an Estate

Removing an Executor of an Estate
By Kenneth Vercammen Esq. of Edison, NJ
Under New Jersey Law, the person selected as an Executor of a Will has numerous legal responsibilities following the death of the person who signed the Will. Primarily, they have a duty to probate the Will, liquidate assets, pay bills and taxes, file all necessary court and tax returns, and then distribute the assets to beneficiaries. 
In New Jersey, the court and Surrogate do not supervise how an executor or administrator handles the estate. An Executor occasionally fails to timely carry out their duties. They may fail to file tax returns, fail to keep records, misappropriate funds or ignore instructions under the Will. If a beneficiary is not satisfied with the handling of the estate, they can have an attorney file a Complaint in the Superior Court to compel accounting, remove the executor, compel filing of tax returns and seek other relief.
The New Probate Statute of NJ made a number of substantial changes to the provisions governing the administration of estates and trusts in New Jersey.
Under the United States Supreme Court Case, Tulsa Professional Collection Services, Inc., v. Joanne Pope, Executrix of the Estate of H. Everett Pope, Jr., Deceased, 108 S.CT. 1340 (1988) 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 the executor’s responsibility to diligently search for any "readily ascertainable" creditors.
As with a litigated court matter, trials can become expensive. Competent elder law/probate attorney may charge an hourly rate of $300-$450 per hour, with a retainer of $4000 needed. Attorneys will require the full retainer to be paid in full up front. We charge a consult fee of $200 to discuss the case.

In lieu of a Formal Accounting the beneficiaries will usually be requested to sign a Release and Refunding bond. If a beneficiary has evidence of misappropriation, they should ask the executor for an informal accounting prior to signing the Release and Refunding bond. 
COMPLAINT FOR ACCOUNTING & REMOVAL OF EXECUTOR
A Complaint for Accounting is filed in the Superior Court Probate Part to request on accounting, removal of the current executor and selection of a new person to administer and wrap up the estate. See Rule 4:87-1
A signed certification of one or more beneficiaries is needed. In addition, an Order to Show Cause is prepared by the attorney. The Order to Show Cause is submitted to be signed by the Judge directing the executor to file a written answer to the Complaint, as well as appear before the court at a specific date and time. The NJ Judiciary website has a model form Order to Show Cause.
As with a litigated court matter, trials can become expensive. Competent elder law/probate attorney may charge an hourly rate of $275-$400 per hour, with a minimum retainer of $3,000 needed. Most attorneys require the retainer to be paid in full up front.
The plaintiff can request the following:
(1) That the named executor be ordered to provide an accounting of the estate to plaintiff.
(2) Defendant Executor be ordered to provide an accounting for all assets of decedent dated five years prior to death that defendant may have administrated through a Power of Attorney.
(3) Payment of plaintiff's attorney's fees and costs of suit for the 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 the plaintiff be named as Administrator C.T.A. or 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. The statue on removing the Executor for cause is NJSA 3B:14-21.
OBJECT TO EXECUTOR'S COMMISSIONS
   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, the Superior Court accounting complaint can request that the commissions be reduced or eliminated.
COMPEL THE 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 the 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.
Removal for cause
 of Executor  
NJSA 3B:14-21    The court may remove a fiduciary from office when:

   
a.  After due notice of an order or judgment of the court so directing, he neglects or refuses, within the time fixed by the court, to file an inventory, render an account or give security or additional security;

   
b.  After due notice of any other order or judgment of the court made under its proper authority, he neglects or refuses to perform or obey the order or judgment within the time fixed by the court;  or

   
c.  He has embezzled, wasted or misapplied any part of the estate committed to his custody, or has abused the trust and confidence reposed in him;  or

   
         d.  He has removed from the state or does not reside therein and neglects or refuses to proceed with the administration of the estate and perform the duties and trust devolving upon him; or

          
         e.  He is of unsound mind or mentally incapacitated for the transaction of business; or

   
f.  One of two or more fiduciaries has neglected or refused to perform his duties or to join with the other fiduciary or fiduciaries in the administration of the estate committed to their care whereby the proper administration and settlement of the estate is or may be hindered or prevented.
In addition, "a court may invoke its equity powers to remove [an executor]." In re Duke, 305 N.J. Super. 408, 438 (Ch. Div. 1995) (citing In re Koretzky, 8 N.J. 506, 530 (1951)). However, a judge should be particularly reluctant to remove a fiduciary chosen by the decedent, Connelly v. Weisfeld, 142 N.J. Eq. 406, 411 (E. & A. 1948), and the foremost concern when such an act is contemplated should be whether the executor's continued service would be detrimental to the estate. Wolosoff v. CSI Liquidating Trust, 205 N.J. Super. 349, 360 (App. Div. 1985)
The critical question is … "whether the circumstances are such that the continuance . . . in office would be detrimental to the [estate] and require the court to grant relief." Wolosoff, supra, 205 N.J. Super. at 360. Thus, mere friction between an executor and beneficiaries is not a ground for removal unless the relationship is likely to "interfere materially with the administration" of the estate. Ibid. Estate litigation is often acrimonious, but the removal of an executor appointed by the decedent is generally to be avoided. Connelly, supra, 142 N.J. Eq. at 411.
"Generally, in order for friction or hostility between the beneficiary and trustee to form the basis for removal, there must be a demonstration that the relationship will interfere materially with the administration of the trust or is likely to do so." Wolosoff, supra, 205 N.J. Super. at 360-61. There also must be proof that the friction or hostility arose out of the trustee's behavior. Ibid.; Starr v. Wiley, 89 N.J. Eq. 79, 90 (Ch. 1918)
Duty of Executor in Probate & Estate Administration
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;
         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)

         Let's review the major duties involved-
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. 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. 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's 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. 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.

CONCLUSION
New Jersey is considered a “probate friendly” state since the executors are not required to obtain court approvals for most actions. However, if the Executor is not complying with state law, in NJ the only recourse a beneficiary has is to file a complaint and Order to Show Cause.
        Planning can only be done while someone is competent and alive. Make sure your assets can be passed directly to your loved ones.

        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.
More information at  www.njlaws.com
Call Kenneth Vercammen’s law office to schedule a confidential appointment
732-572-0500

  KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500

more information at http://www.njlaws.com/removing_the_executor_of_an_estate.html

Tuesday, October 25, 2016

One month notice to quit required to evict on month to month tenancy

One month notice to quit required to evict on month to month tenancy
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

                                                                                    SUPERIOR COURT OF NEW JERSEY
                                                                                    APPELLATE DIVISION
                                                                                    DOCKET NO.  A-0604-14T2



JACOB ZLOTKIN,

            Plaintiff-Respondent,

v.

LEORA DUBROVSKY REALTY
GROUP, LLC,

            Defendant-Appellant.
__________________________________
September 14, 2016
 
 


Argued May 9, 2016 – Decided

Before Judges Nugent and Higbee.

On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Monmouth County, Docket No. LT-3277-14.

Elias L. Schneider argued the cause for appellant.

George J. Cieri argued the cause for respondent.

PER CURIAM

Defendant, Leora Dubrovsky Realty Group, LLC, appeals from a July 11, 2014 judgment for possession issued against it in an action brought by plaintiff, Jacob Zlotkin.  We affirm.
Plaintiff is the owner of a commercial unit on Court Street in Freehold.  On May 10, 2012, plaintiff and defendant entered into a one-year commercial lease (the "May 2012 lease") of the unit on Court Street, with rent payable in $300 monthly installments.  The lease also provided defendant had the option to extend the lease on a year-to-year basis for the next five years.  This provision stated all other terms of the renewal would remain identical, except for yearly rent increases to be negotiated by the parties.
As the lease drew near its end, the parties were unable to agree on a rent increase.  Defendant remained in possession of the premises past the expiration of the lease term.  For several more months, defendant paid rent under the rate fixed by the May 2012 lease.  Later in 2013, plaintiff served defendant with a Notice to Quit and a Demand for Possession, effective November 1, 2013.  Again, defendant remained in possession of the property past this date.
Plaintiff filed a summary dispossession action.  After trial, a judgment for possession of the property was entered for plaintiff, and this appeal followed.  In subsequent proceedings in 2014, the parties agreed to a stay of the execution of the judgment of possession pending this appeal.
The court's scope of review of a judgment rendered after a non-jury trial is limited, and should not be disturbed unless completely unsupported by the evidence in the record.  Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483­-84 (1974).  More specifically, "[w]e do not weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence."  Mountain Hill, L.L.C. v. Twp. of Middletown, 399 N.J. Super. 486, 498 (App. Div. 2008) (quoting State v. Barone, 147 N.J. 599, 615 (1997)), certif. denied, 199 N.J. 129 (2009).  Indeed, we "do not disturb the factual findings and legal conclusions of the trial judge unless convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice."  Rova Farms Resort, supra, 65 N.J. at 484 (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963)).
Defendant asserts because this lease was year-to-year, the notice to quit was not timely, and thus the court lacked jurisdiction to enter judgment on plaintiff's summary dispossession action.  This argument misses the mark.  N.J.S.A. 2A:18-53(a) vests in the Special Civil Part jurisdiction of actions to remove non-residential holdover lessees and tenants.
N.J.S.A. 2A:18-56(a),(b) sets forth the time periods for serving the notice to quit.  Subsection (a) requires that year-to-year tenants be given at least three months' notice, while subsection (b) requires month-to-month tenants be given only a single months' notice.  Therefore, to resolve the issue before us we must determine the lease term at the time the defendant was noticed:  a month-to-month term, in which case notice was timely, or a year-to-year term, in which case notice was untimely.  This question, in turn, requires resolving whether defendant successfully exercised its option to renew under the May 2012 lease.
Defendant challenges on appeal the interpretation of the parties' rights and responsibilities under the lease agreement and contends it successfully exercised its option to renew for another year under the terms of the May 2012 lease.  The interpretation of contracts is a "matter of law for the court subject to de novo review."  Sealed Air Corp. v. Royal Indem. Co., 404 N.J. Super. 363, 376, certif. denied, 196 N.J. 601 (2008); see also Town of Kearny v. Disc. City of Old Bridge, Inc., 205 N.J. 386, 411 (2011) (applying this principle to the interpretation of leases).
At trial, the judge credited testimony that negotiations to exercise the option provided by the May 2012 lease took place during the 2013-2014 term.  The record contains both oral testimony as well as evidence of email exchanges between the parties regarding price negotiations.[1]  However, the parties were ultimately unable to agree on a rent increase.  Based upon this testimony, the trial judge determined there was no "meeting of the minds" and the option to renew was not exercised.  We agree. 
A tenant who holds over beyond the expiration of their lease term is deemed to be a month-to-month tenant.  N.J.S.A. 46:8-10.  Therefore, when defendant held over, the company became a month-to-month tenant, entitled to only a month's notice to quit.  N.J.S.A. 2A:18-56(b).  Since this notice to quit was appropriately given, the trial court committed no error by hearing plaintiff's summary dispossession action.
Defendant argues, in the alternative, that although the parties could not agree on the rental amount, the trial judge was in error by not intervening and supplying a reasonable rental amount.  Putting aside the fact defendant did not request the court supply a rental amount at any time prior to trial, there is no legal authority in New Jersey providing a court to set a new rental amount when parties are unable to agree.  As defendant admits in its brief, there is no reported New Jersey case where a New Jersey court has set a new rental amount where parties only agreed to agree to negotiate future increases, but are unable to agree on the amount of rent to be paid during the renewed term.  Defendant provides extensive citations to other jurisdictions – ranging from Alaska to the U.S. Virgin Islands – to illustrate use of this practice elsewhere.  Absent guiding New Jersey precedent, the trial judge correctly refused to set a rent for the parties and properly entered the judgment of possession.
Affirmed.

Description: certify
 
 



[1]   At trial, there was also discussion regarding a proposed May 2013 lease, which contained several different terms and eliminated all options to renew.  Defendant argues that these changes are evidence of plaintiff's failure to abide by the terms of the May 2012 lease and a failure to negotiate a yearly rent increase in good faith.  However, the exact role of this second lease is unclear.  Plaintiff was unable to testify confidently that he personally prepared this second lease, or as to what its specific function in the negation process may have been.  What is clear, however, is that this lease did not represent the totality of the negotiations between the parties.