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Sunday, April 24, 2016

Probate Answers

Probate Answers


Probate is the process where after death the instructions of the Will are carried out. Will is admitted to “Probate” in the County Surrogate. Some people refer to the Surrogate as the Will Clerk. Upon the death of the testator or testatrix (maker of the Will), the probate procedure can begin. This is the legal process which establishes the genuineness of the Will. It is done by the Surrogate in the county where the testator or testatrix resided at the time of death.
The probate application must contain the following information:
1. the applicant's residence;?
2. the name, domicile and date of death of the decedent;?
3. the names and addresses of the decedent's spouse, heirs (those entitled to take under the laws of interstate succession), and any person named to serve as Executor;?
4. the ages of any minor heirs; and?
5. the names of the testator's children when the Will was made and the names of children born and adopted after the Will was made, or their children, if any.
To minimize time spent in the Surrogate, it is recommended, and in some counties required, that before an Executor submits the Will for probate the executor’s attorney or executor send the Court:
1) a data sheet (referred to in some counties as an information sheet or a fact sheet) containing the information needed by the Surrogate to complete the application;
2) a copy of the Will; and
3) a copy of the death certificate.
 more at http://www.njlaws.com/answers_to_probate.html

FILING A PROBATE APPLICATION Upon the death of a person, a probate proceeding may be commenced by offering the decedent's (the dead person's ) last Will for probate in the Surrogate's Court of the county in which the decedent was domiciled at death. R. 4:80-1(a). Generally, the Executor nominated in the Will brings the proceeding by filing a verified application with the Court.

When the applicant files the original Will for probate, the applicant must also file a death certificate (and original with a raised seal). A filing fee of approximately $150 must be paid. Once the Will, application and death certificate are filed, the Surrogate will review the papers, and if there are no irregularities or objections, admit the Will to probate. Although New Jersey law prohibits admission of a Will to probate within 10 days of the testator's death, an applicant may submit the application prior to expiration of the 10-day period. If the Will is filed after the 10-day waiting period, many Courts will issue a judgment for probate contemporaneously with the filing of the probate papers.
Qualifying the Executor
Once the Will is admitted to probate, the Court will issue letters testamentary to an Executor who has properly qualified to serve. An Executor named in a Will qualifies to serve by filing a form affidavit in which the Executor agrees to perform his or her duties. The nominated Executor must also provide a power of attorney to the Surrogate empowering the Surrogate to accept service of process of claims against the estate. Once the Executor qualifies, the Court then issues letters testamentary.
Mailing Probate Notices
After a Will is admitted to probate, the Executor’s Attorney or Executor must mail within 60 days a notice of probate to the decedent's spouse, heirs and all beneficiaries under the Will. The notice of probate should contain the executor's name and address, place and date that the Will was probated, and an offer to furnish a copy of the Will upon request. Within 10 days of mailing the notice the Executor’s Attorney or Executor should file proof of service of the notice with the Surrogate's Court. Once notice of probate has been sent and proof of mailing has been filed the probate process is essentially completed.
Completing the probate process should cause only minimal delay, perhaps a few weeks, in administering a decedent's affairs. The cost of admitting a Will to probate should be limited. Unlike in some other states, the Surrogate's filing fee in New Jersey is the same regardless of the size of the estate. See Zimiles Probate is not a Dirty word in New Jersey N.J. Lawyer pg. 14 ( July/August 1992)
How do I begin the probate procedure?
The Executor or personal representative can be appointed and the Will admitted to probate in most cases by going to the Surrogate's Court with the original Will, certified death certificate, and, if the Will is not self-proven, at least one of the witnesses who signed the Will must prove the signature on the Will.
How is an administrator appointed when there is no Will?
When there is no Will, an administrator, administratrix or personal representative is appointed by the Surrogate's Court. The surviving spouse has the first right to apply for the position of administrator; however, any heir of the decedent may be appointed. When one of several heirs seeks to be appointed administrator, all other heirs must renounce their right to be appointed administrator. In most cases, a surety bond must be furnished to cover the value of the real and personal property in the estate.
What kind of information should I collect?
The decedent's personal representative should make a list of all of the next of kin of the person who died, along with their degree of relationship, addresses and ages.
What if the Will is not properly executed?
The Surrogate will advise the personal representative as to the proper procedure in order to allow the Will to be admitted to probate. This procedure normally involves a formal hearing before a Judge of the Superior Court.
How soon must state inheritance taxes be paid?
State inheritance tax returns must be filed and the tax paid within eight (8) months after decedent's death to avoid interest.
Are unpaid inheritance taxes a lien on property?
Yes, to sell real estate, you Will need to obtain tax waivers from the New Jersey State Transfer Inheritance 'Tax Bureau, and the waivers must be filed with the County Clerk in the county where the land is located. Land held by husband and wife as tenants by the entirety need not be reported and may be transferred without a waiver. Other property may be subject to a lien for unpaid inheritance taxes such as bank accounts and certificates of deposit.
How about federal estate taxes?
In 2008 there is no federal tax due unless the estate exceeds $2,000,000. However, there is a New Jersey Estate tax for estates over $675,000.
There is also an unlimited federal marital deduction, which means unlimited amounts of property can be transferred between spouses without estate of gift taxes.
How many Surrogate's Certificates (Shorts) Will I need?
A list of all of the assets of the estate should also be prepared to help determine the number of Surrogate's Certificates that must be issued by the probate clerk in the Surrogate's Office.
When is the Will admitted to probate?
After all the proper forms are filed with the probate clerk, the clerk will prepare a judgment which admits the Will to probate. The Surrogate then signs the judgment and issues Letters Testamentary.
What are Surrogate's Certificates used for?
Surrogate's Certificates act as evidence of the authority of the personal representative ( Executor, Administrator, Trustee ) to act. These certificates are necessary to accomplish certain tasks such as transferring stocks, closing bank accounts, etc.
Is it necessary to send copies of the Will to the beneficiaries?
From the time the Will is probated, the Executer has 60 days to mail all beneficiaries a notice that they can be provided with a copy of the Will, along with a notice giving the specific date and place the Will was entered into probate. See Zimiles Probate is not a Dirty word in New Jersey N.J. Lawyer
Basically, what is the Executor/Administrator required to do?
The Executor or Administrator is, in general, required to collect and safeguard all of the assets of the estate and eventually to pay the debts of the decedent, as well as any taxes due, and be able to provide an accounting of his actions to the beneficiaries or heirs. An Executor or Administrator must obtain the necessary legal documents, called either LETTERS TESTAMENTARY (for an Executor) or LETTERS OF ADMINISTRATION (for an Administrator), are obtained through the Surrogate in the county in which the DECEDENT (the deceased person) resided at the time of death.
The duties of the personal representative include:
* - finding the Will and having it PROBATED. Probate is the legal procedure used to establish the validity of a Will.?* - locating and protecting the assets of the estate.?* - finding and notifying the heirs.?* - paying the debts, expenses, and taxes of the estate from the assets of the estate.?* - complying with the requirements of state and federal law.?* - distributing property to the heirs after all proper procedures have been followed.
Is an attorney necessary in estate administration?
As a practical matter, it is very difficulty for a non-lawyer to correctly follow the required procedures in administering an estate without the assistance of an attorney. The personal representative selects the attorney for the estate. You may wish to call your attorney to give you further advice as to specific duties and obligations.
Where does the Executor/Administrator obtain the funds to pay debts?
The Executor may, in most cases, withdraw up to one-half of the funds in the decedent's New Jersey bank accounts. Generally, the Executor should open an estate checking account which can be used to receive and disburse funds.
Am I entitled to compensation for acting as Executor or Administrator?
An Executor or Administrator is entitled to corpus commissions of 5% of the first $200,000.00 of estate assets subject to administration, 3-1/2% on the excess over $200,000.00 up to $1,000,000.00 and 2% or such other percentage as the Court may determine on the excess over $1,000,000.00.
If there is more than one Executor or Administrator, an additional 1% corpus commission may be allowed by the Court for each additional Executor or Administrator.
In addition to corpus commissions, an Executor or Administrator is entitled to income commissions of 6% of income earned on estate corpus during the administration of the estate.
How do I handle joint bank accounts or certificates of deposit?
Certain bank accounts and certificates may be owned with rights of survivorship, which means that upon the death of one party to the account, the surviving party (or parties) become the sole owner (or owners). If the decedent maintained such an account, the survivor Will be able to withdraw on-half of the funds in the account by giving the bank a Death Certificate and without the need to provide anything from the Surrogate. The other half will not be released until a tax waiver is issued by the New Jersey Transfer Inheritance Tax Bureau, normally after the tax is paid and the return is filed.
Is all this paperwork necessary even on small estates?
There is a procedure whereby the assets of small estates can be transferred to the surviving spouse without the necessity of administration. The spouse files an affidavit stating, among other things, that the decedent had no Will and that all of the real and personal assets of the decedent do not exceed $10,000.

How do I prove that legacies were paid?
The Executor has a duty to pay the legacies or distribute shares as provided for under the Will; however, when he /she does so, he/she must take a Release and Refunding Bond from the person taking the share. The Refunding Bond is then forwarded to the Surrogate for filing and recording.
What if there is no Will?
If the decedent dies without a Will (intestate), there is a statute which determines to whom the decedent's property is to be distributed according to the degree of family relationship.
Estate administration and Probate Newsletter 2015
  
Kenneth Vercammen, Esq. Co-Chair ABA Probate & Estate Planning Committee
1.  Executor Duties and Responsibilities
2. Power of Attorney   
3  Provisions in a Living Will
4. Removing Executor of an Estate and complaint for accounting by an unhappy Beneficiary
5. Upcoming seminars 
1. Executor Duties 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. 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).
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;
Duties/ Executor to Do
Fill out surrogate info sheet and send to surrogate
Bring Will to Surrogate from Probate 
Notice of Probate to Beneficiaries (Attorney will handle)
If charity, notice to Atty General (Attorney will handle)
File notice of Probate with Surrogate (Attorney will handle)
File first Federal and State Income Tax Return [CPA- ex Marc Kane]
Prepare Inheritance Tax Return and obtain Tax Waivers (Attorney will handle)
Apply to Federal Tax ID #
Set up Estate Account at bank (pay all bills from estate account)
Pay Bills
File waivers within 8 months upon receipt (Attorney will handle)
Prepare Informal Accounting
Prepare Release and Refunding Bond (Attorney will handle)
Obtain Child Support Judgment clearance (Attorney will handle)
        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.
      Step 1: Probate. The executor must probate the Will. Probate is a process by which a Will is admitted. This means that the Willis 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.
       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.
        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. The New Jersey Estate tax starts from Estates over $675,000.
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 Last step: Distribute the Assets. After all debts and expenses have been paid, distribute the assets 
         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. This is why it is important for the Executor to retain a skilled attorney to assist them and the estate. Casual or part-time attention is not likely to achieve success.
2. Reasons to sign a Power of Attorney 
A Power of Attorney allows your spouse or another person to administer your assets during your lifetime, either upon disability or now.  The lack of a properly prepared and executed Power of Attorney can cause extreme difficulties when an individual is stricken with severe illness or injury rendering him/her unable to make decisions or manage financial and medical affairs. 
In the absence of a Power of Attorney or other legal arrangement to distribute property if you become disabled, your family or partner cannot pay your bills or handle your assets. The result can be lengthy delays.  
The Power of Attorney can be effective immediately upon signing or only upon disability. 
Most people who give a Power of Attorney to someone else do it with the thought that if they should become ill or incapacitated or if they should travel, the Power of Attorney will permit the holder of it to pay their bills and to handle all of their affairs for them as limited in the Power of Attorney. 
The term durable in reference to a Power of Attorney means that the power remains in force for the lifetime of the principal, even if he/she becomes mentally incapacitated. A principal may cancel a Power of Attorney at any time for any reason. Powers granted on a Power of Attorney document can be very broad or very narrow in accordance with the needs of the principal.  
New Jersey has a detailed, expensive legal procedures, called Guardianships or conservatorships, to provide for appointment of a Guardian. These normally require lengthy, formal proceedings and are expensive in court. This means involvement of lawyers to prepare and file the necessary papers and doctors to provide medical testimony regarding the mental incapacity of the subject of the action. 
The procedures also require the involvement of a temporary guardian to investigate, even intercede, in surrogate proceedings. This can be slow, costly, and very frustrating.   Advance preparation of the Power of Attorney could avoid the inconvenience and expense of guardianship proceedings. This needs to be done while the principal is competent, alert and aware of the consequences of his / her decision. Once a serious problem occurs, it is usually too late.   

3  Provisions in a Living Will
         All States have declared that competent adults have the fundamental right in collaboration with their health care providers, to control decisions about their own health care.  States recognize in their laws and public policy, the personal right of the individual patient to make voluntary, informed, choices to accept, reject or to choose among various alternative courses of medical and surgical treatment.
WHY LIVING WILLS
         Modern advances in science and medicine have made possible the prolongation of the lives of many seriously ill individuals, without always offering realistic prospects for improvement or cure.  For some individuals the possibility of extended life is experienced as meaningful and of benefit.  For others, artificial continuation of life may seem to provide nothing medically necessary or valuable, serving only to extend suffering and draw out the dying process.   
PURPOSE OF LIVING WILLS
         In order to assure respect for patients' previously expressed wishes when the capacity to participate actively in decision making has been lost or impaired; to facilitate and encourage a sound decision making process in which patients, health care representatives, families, physicians, and other health care professionals are active participants; to properly consider patients' interests both in their self-determination and well-being; and to provide necessary and appropriate safeguards concerning the termination of life-sustaining treatment for incompetent patients as the law and policy of this State and the Legislatures have enacted Living Will/ Advance Directives for Health Care Acts.
REQUIREMENTS OF STATUTE
         The advance directive for health care (Living Will) requires a writing executed in accordance with the requirements of the state law.  It must be signed and dated in front of an attorney at law, other person authorized to administer oaths, or in the presence of two subscribing adult witnesses.  If the two adult witnesses are used, they both must attest that the declarant is of sound mind and not under undue influence.  A designated health care representative shall not act as a witness to the execution of the advance directive.  Since this is a legal document, it must be executed properly to be valid under the statute.

1. ______ shall be withheld or withdrawn as Life Sustaining Treatment.
                                                      
2. ______ shall be provided to the extent medically appropriate even if other Life Sustaining Treatment is withheld or withdrawn.

       Directive as to Medical Treatment. I request that Life Sustaining Treatment be withheld or withdrawn from me in each of the following circumstances: (Initial all that apply)

1.  ______ If the life sustaining treatment is experimental and not a proven therapy, or is likely to be ineffective or futile in prolonging my life, or is likely to merely prolong an imminent dying process;
2.  ______ If I am permanently unconscious (total and irreversible loss of consciousness and capacity for interaction with the environment);
3. ______ If I am in a terminal condition (terminal stage of an irreversibly fatal illness, disease, or condition); or
4.  ______ If I have a serious irreversible illness or condition, and the likely risks and burdens associated with the medical intervention to be withheld or withdrawn outweigh the likely benefits to me from such intervention.
                         ______ None of the above. I direct that all medically appropriate measures be provided to sustain my life, regardless of my physical or mental condition.
Organ Donation – We suggest clients initial yes (initial one)

1. ______ Yes, I wish, if feasible, to donate for transplant any part or all of any organ, tissue, eyes, bone, arteries or other parts or portions of my body which may be useful to another person. My Health Care Representative may take any action in furtherance of this gift (which I intend to be an anatomical gift in accordance with N.J.S.A. 26:6-57 et. seq. or similar law).  Consistent with this gift life sustaining treatment may be temporarily continued or modified if I am brain dead so as to preserve and protect for transplant the useful portions of my body.

2. ______ No, I do not wish to make an anatomical gift.
HEALTH CARE REPRESENTATIVE
         The declarant must designate one or more alternative health care representatives.  Health care representative means the person designated by you under the Living Will for the purpose of making health care decisions on your behalf.
I hereby designate   p1 to serve as my attorney-in-fact for the purpose of making medical treatment decisions. In the event p1 predeceases me or is unable or unwilling to act as my attorney-in-fact for the purpose of making medical treatment decisions, then I select ___
WHEN DOES THE ADVANCE DIRECTIVE BECOME 
OPERATIVE
         An advance directive becomes operative when (1) it is transmitted to the attending physician or to the health care institution, and (2) it is determined pursuant to the Act that the patient lacks capacity to make a particular health care decision.
         Treatment decisions in pursuit of an advance directive shall not be made and implemented until there has been a reasonable opportunity to establish and where appropriate confirm, a reliable diagnosis for the patient which shall include the attending physician's opinion concerning the nature, cause, extent, and probable duration of the patient's incapacity.  This soon after shall be made a part of the patient's medical records.  For additional information or to have a Living Will prepared, see your attorney.  In addition, be certain your Last Will and testament is up to date.

4  Removing Executor of an estate and Complaint for accounting by an unhappy Beneficiary 
       A Complaint for Accounting is filed by your attorney 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 $300-$400 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 the person dated five years prior to death, if there was a Power of Attorney, sell before 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 our client 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 typically entitled to receive a commission to compensate them for work performed. 
         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 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.
   For a beneficiary, you will probably eventually be requested to sign a release and refunding bond. If you have evidence of misappropriation, you may consider asking the executor for an informal accounting prior to signing the release and refunding bond. If you have concern regarding the handling of an estate, schedule an appointment to consult an experienced attorney.
5. Upcoming seminars
    Throughout the year area Senior Centers, Libraries and AARP groups hold seminars. Email us at vercammenlaw@njlaws.com for dates of upcoming programs, or if your group would like to have a speaker on Wills, Probate or Estate Administration

Sunday, April 10, 2016

Wills and Estate Administration - Why Everyone Should Have a Will

Wills and Estate Administration - Why Everyone Should Have a Will

http://www.njlaws.com/wills.htm


Contact the Law Office of KENNETH A VERCAMMEN for Legal Representation Wills and Estate Administration
WILLS -- WHY EVERYONE SHOULD MAKE ONE
Transfer of an estate to an individuals heirs after his death may be an orderly or thoroughly disorganized process. It depends on a four-letter word -- WILL. Every person, eighteen (18) years of age or over should make one. This important document is a legal declaration of the way an individual wants his property distributed. Whether the estate is large or small, it is desirable to transfer what you own with a properly executed will -- whether you are a man or woman, married or single. Those without wills may leave their survivors in financial insecurity or downright frustration. It is to the advantage of both the individual and his family or his close friends that he execute a will. Contrary to general opinion, frequently the smaller amounts involved, the greater trouble when there is no will. Squabbles over a few thousand dollars an be more bitter than fights over many thousands.
Information below from the website of the COUNTY OF CUMBERLAND STATE OF NEW JERSEY SURROGATES COURT
YOUR WILL -- A BLUEPRINT FOR THE FUTURE
Making a will in an important step in your financial management program. To save your heirs time and money, plan now for the orderly transfer of your property. In this way the cost of a bond and possible disagreement among those who are to receive your property may be avoided. You decide to whom, when, and in what amounts your assets should go. You select your executor or personal representative, the one who shall be responsible for the disposition of the estate. You may avoid forced sale of your property, or costly and tedious applications to courts for the right to sell it. You have greater assurance that your plans will be carried out as you desire. One way to guarantee trouble to a family is not to make a will. Court records bulge with tragic tales of families torn apart and caused immeasurable pain and financial expense because the income producer did not do so. Without a will your estate must be distributed according to the intestate laws, the provisions of which are general and inflexible. The law will say show shall administer your estate, among whom, and how it shall be divided. By losing the privilege of naming your executor or personal representative, you may make a costly mistake. Your property may not be distributed as you wish, and thus cause hardship for those you want to safeguard most. Without a will you lose the privilege of naming a guardian for your minor children. This is vital, particularly if your spouse should not survive you. If you leave no immediate family, failure to leave a will may result in your property going to persons in whom you have no particular interest. Wills are not do-it-yourself projects. Secure the services of an attorney. Although many prepared without legal aid have been successfully executed, the risk is too great. A minor detail may invalidate your good intentions.
STEPS IN PREPARING YOUR WILL
A document that will stand up in court, if necessary, and be tailor-made to meet the needs of your family, must first be thought out carefully by you, and then skillfully prepared by a lawyer who specializes in will drafting and estate planning. He can guide you to the best decisions -- but only after obtaining all the facts that you alone can give. Thus, you can be sure that your will is properly phrased, witnessed, and has all the technicalities observed. It is penny-wise and pound- foolish not to pay a lawyers fee for this service. The charge will depend on the size and character of the estate and the work involved. Here are some points to know when making a will:
You dont need to make an itemized statement of your assets, nor do you need to state the disposition of your property item by item.
You can change it at any time you wish, as your assets, beneficiaries or desires change.
Your will is not recorded before death; no one need know of it if that is your wish.
The existence of the will does not affect your ability to sell or dispose of property. You may continue as though you had not written the document.
Start by making a list of everything you own and all you owe -- a statement that will show exactly where you stand financially. Decide to whom you will lave your real and personal property. Do it systematically. Be certain you have stated just what your wishes are by making a list of the persons involved, their relationship to you, your objectives, when their bequest is to be given, and how it is to be provided -- through a trust fund, life insurance trust, etc., and the source of the funds, whether from the general estate or proceeds of insurance policies. Take this list to the lawyer who is counseling with you. Select an executor, executrix or personal representative to administer the will. This may be the beneficiary who will inherit the bulk of your estate, a member of the family, your legal or financial advisor, a trusted friend or business associate. You should name a contingent executor or personal representative to act in case your first selection dies before you, or is unable to serve. A bank can act as executor, personal representative, trustee under a trust, or guardian of either a minor or an incompetent person. A bank is experienced and familiar with accounting and management details. It is financially responsible and a continuing institution -- an individual may die, but a bank has continued life. In selecting your executor or personal representative and trustee, the choice should be made with great care. The decision should be businesslike, not sentimental. While sentiment and friendship cause some people to name members of the family or close friends, remember that your executor or personal representative has the important responsibility of settling your estate and seeing that the wishes expressed are faithfully carried out. Here are a few of things an executor or personal representative must do, in addition to seeing that the will is offered for probate:
Qualify as executor, (also known as Personal Representative), obtain certificate of authority, and if necessary, execute a bond.
Locate and take possession of all property, discover and assert all rights and line up claims owned by the estate.
Prepare and file an inventory of all property and interest of any kind belonging to the estate, listing the appraised value.
Review all assets, liquidating those of doubtful character.
Advertise for claims and pay them in the order cited by law.
Collect monies due the estate.
Figure and pay taxes.
Pay legacies under the will.
Distribute the estate.
Make final accounting to the court.
It is important that you name a guardian if you have minor children. When you consult the attorney, ask for a rough draft of your will and study it carefully before signing the final copy.
KEEPING YOUR WILL UP TO DATE
Periodically review your will to keep it up to date. Keeping it current is just as important as making one in the first place. Changes in your life such as marriage, birth of child, death, crippling accident, change of witnesses, purchase or sale of property, a change in your financial status -- or a change in the estate law may make important revisions or a new will advisable. A will drawn in another state can be valid; however, revisions in relation to New Jersey laws may be prudent. You are free to change it any time, but do it correctly.
HOW TO CHANGE YOUR WILL
The safe way to change a will is to have a new one drawn; however, a codicil may be effective. A codicil is a separate document used to make minor changes. It must be signed with the same formality as the will itself. It is not necessary to have the same witnesses on the codicil and the original will; however, both sets of witnesses must prove the will. Do not try to change your will by drawing lines through items, erasing, writing over or adding notations. This may destroy it as a legal document. Information compliments of Cumberland Surrogate.
INTESTATE SUCCESSION
When no will exists, the statutes of New Jersey provide for the distribution of property to heirs, that is, by intestate succession. HOW WILL YOUR PROPERTY BE DIVIDED IF YOU HAVE NO WILL? THE CHART BELOW SHOWS HOW AN ESTATE IS DISTRIBUTED IN NEW JERSEY IF YOU DO NOT LEAVE A WILL. If you die without leaving a Will and are a resident of New Jersey, the State law provides the manner for distributing your property. Your net estate remaining after deduction of debts, taxes, family exemptions, etc., would be distributed under the Statutes governing Decedents Estates and, in the case of most common occurrence, the heirs who would receive such property are as follows: Property owned jointly be husband and wife is automatically owned by the survivor. The following charts show the distribution of separately owned property. (Effective September 1, 1978) If You Die Leaving: Wife or Husband and Child or Children (also of Survivor) Or their Descendants Wife or Husband receives $50,000 plus one-half of balance Child or Children receive one-half of balance divided equally Grandchildren take their deceased parents share unless all children be deceased, then all grandchildren share equally.
APPOINTMENT OF ADMINISTRATOR OR PERSONAL REPRESENTATIVES
When there is no will, an administrator, administratrix or personal representative is appointed by the court. Any close relative may be appointed. For an individual or a bank to be appointed administrator or personal representative, all other heirs must renounce their right. A surety bond must be furnished by paying a premium to a surety company for signing his or her bond. In the case of spouse, the need for a surety bond is waived if the surviving spouse is the sole inheritor of the estate not exceeding $50,000.00. If the estate is over $50,000.00 a bond must be provided for the amount over $50,000.00. The county surrogate grants letters of administration showing the authority to act. Information compliments of Cumberland Surrogate.
HOW A WILL IS PROBATED
Upon the death of the testator or testatrix, the will is probated. This is the legal process which establishes the genuineness of the will. It is done by the surrogate in the county where the testator or testatrix resides at the time of death. The executor, executrix or personal representative is appointed by going to the Surrogate Court with the will, a death certificate, and one of the witnesses. If the "attestation" clause (where the witnesses sign) is properly worded, only one of the witnesses need be present when a will is probated. If the attestation clause is not correct, both witnesses must be present. If both witnesses are dead, and there is one attestation clause, the will can be probated by proving their signatures. If they have moved away, the surrogate can appoint a commissioner where the witnesses reside to take their testimony. If an Affidavit of Testator and witnesses is acknowledged by a Notary Public, the witnesses need not appear at the time of probate.
NOTICE TO CREDITORS TO PRESENT CLAIMS
When a NOTICE TO CREDITORS is published, the executor/trix, administrator/trix shall mail a copy of the NOTICE TO CREDITORS to each creditor of the estate of which the personal representative knows or which can be ascertained by reasonable inquiry, by ordinary mail to the creditors last known address.
TAXES THAT INFLUENCE YOUR WILL
Three kinds of taxes can influence the provisions of your will: inheritance, estate and gift. An inheritance by will, by law, by surviving joint owner, or from life insurance is not income and is not subject to income tax.
New Jersey Inheritance Tax Inheritance Tax is a tax payable by an heir or beneficiary for the right to acquire the property of a deceased person or to receive a gift in anticipation of death. The tax is determined by the amount inherited and by the relationship of the individual to the deceased. In New Jersey, no one is taxed for receiving property, including money, worth up to $499.99.
Inheritance Tax Rates Spouses: All property passing to a spouse from a deceased spouse who died since January 1, 1985 is free of New Jersey inheritance tax. Forms for proving the exemption on checking accounts, savings accounts, Certificates of Deposit, etc. may be obtained from the institution holding the funds. Parents, grandparents, children, grandchildren, adopted children, or stepchildren: The first $50,000.00 is exempt where the decedent died between July 1, 1985 and July 1, 1986. The exemption is raised to $150,000.00 for decedents dying between July 1, 1986 and July 1, 1987; to $250,000.00 for decedents dying between July 1, 1987 and July 1, 1988. After July 1, 1988 all property passing to such persons is exempt. Brother, sister, daughter-in-law, or son-in-law: If the inheritance is $500.00 or more, the tax is 11 percent of the entire amount up to $1,100,000.00 and increases gradually thereafter. For persons dying after July 1, 1988 the exemption is $25,000.00. Every other beneficiary pays 15 percent on the total amount up to $700,000.00. Tax is 16 percent on remainder. Charitable, religious, or benevolent institutions: Each beneficiary in this class is tax exempt entirely. Money or property left the State of New Jersey, a municipality, or a nonprofit educational institution is exempt from inheritance tax.
Filing New Jersey Inheritance Tax Returns A substantial number of estates remain taxable and even some on which no tax is due require the filing of a New Jersey Inheritance Tax Return. Tax forms and instructions are furnished by the District Supervisor of the Transfer Inheritance Tax Bureau in the county where the decedent (a deceased person) resided at the time of death. The Executor, administrator or a personal representative files the completed inheritance tax return with the District Supervisor of the Transfer Inheritance Tax Bureau.
Clearing Title and Transferring Property For those estates that are taxable, unpaid inheritance taxes are a lien on New Jersey real estate and shares and stocks of corporations and financial institutions organized under laws of New Jersey. If there is no tax, the Transfer Inheritance Tax Bureau sends waivers that are required to clear title to the land and transfer ownership of bank accounts or securities.
If there is a tax, a bill is submitted and the waivers sent when the tax is paid. To clear title to real property, a waiver is filed with the county clerk in the county where the land is located. Land held by husband and wife as tenants by the entirety need not be reported and may be transferred without a waiver in the estate of the one first dying. To transfer stocks, shares, and securities of financial institutions and New Jersey corporations, the executor, administrator or personal representative sends waivers to them when asking transfer.
Inheritance tax returns must be filed and the tax paid within 8 months after decedents death to avoid interest, charged at the rate of 10 percent per year. Although the interest penalty cannot be waived beyond this 8-month period, the time for filing may be extended on application to the bureau. This tax information is general and may not apply to each estate; therefore, it is advised that the inheritance tax supervisor be contacted for further information before the estate is settled.
Gift Tax New Jersey does not levy a tax on gifts, except in anticipation of death. Any gift made within 3 years of death is presumed to be in anticipation of death and may be subject to New Jersey Inheritance tax. An individual may give an amount up to $10,000 to any one person during the calendar year, exempt from tax. A married couple can give up to $20,000 to a person yearly without tax. Any number of tax- free gifts may be made during the year. If you make gifts to one person of more than $10,000 during the calendar year, file a Federal Gift Tax Return with the District Director of Internal Revenue. Gifts between husband and wife are exempt from Federal Gift Tax. Federal Marital Deductions An unlimited amount of real and personal property can be transferred between spouses without Federal Estate Tax. For proper application of the marital deduction, contact your attorney or trust officer at your bank.
SELF PROVING WILLS RECOMMENDED USE SELF PROVING WILLS TO SPEED UP PROBATE
Prior to 1978, New Jersey Probate Rules required one of the two witnesses to a will to travel and appear in the surrogate¹s office and sign a paper to certify they were a witness. This often created problems when the witness was deceased, moved away, or simply could not be located. Some witnesses would require a $500 fee to simply sign a surrogate paper.
In 1978, the New Jersey Legislature passed a law to create a new type of will called a ³Self-Proving Will.² In such a will, the person for whom the will is made will sign. Then two witnesses sign. Then the attorney or notary must sign; with certain statutory language to indicate the will is self proving. When done properly, the execution will not have to locate any witnesses. This usually saves time and money. If your will is not ³self-proving² or if you are unsure, schedule an appointment with an elder law attorney.
GLOSSARY
Administrator, Administratrix (also known as Personal Representative) -- Person or institution appointed by the court to manage and distribute the estate of a person who dies without a will.
Beneficiary -- Person named to receive property or benefits.
Codicil -- An addition or supplement made to change or add provisions to a will.
Contingent beneficiary -- Receiver of property or benefits if first-named beneficiary dies before receiving all benefits.
Contract -- Legally enforceable agreement.
Decedent -- A deceased person.
Devise -- To give real or Personal Property.
Estate -- Everything a person owns, all real and personal property owned.
Executor, Executrix (also known as Personal Representative) -- A person or institution named in the will to carry out the provisions and directions of the will.
Intestate -- A person who dies without making a valid will.
Legatee -- Person who receives personal property under a will.
Levied -- To collect by assessment.
Lien -- A charge upon property, real or personal, for the satisfaction of a debt.
Personal property -- Intangible property, such as stocks, bonds, or bank accounts; and tangible property such as Furniture, Automobile, and Jewelry.
Probate -- Official proof of the genuineness of a will.
Real property -- Land and buildings.
Surrogate -- A judicial officer who has jurisdiction over the probate of wills in the absence of a contest and acts as the Clerk of the Probate
Court in the settlement of estates, guardianships, and trusts.
Tenants in common -- Two or more persons owning individual interests in property.
Testator, Testatrix -- The person who makes a will.
Trust -- Property owned and managed by one person for the benefit of another.
Trustee -- Person or institution holding property in trust.
Waiver -- A legal instrument relinquishing a right or lien.
Will -- A legal declaration of the manner in which a person wishes his
estate divided after death.
Witness -- Person who observes the signing of a will and also attests to
the signatures.
Part of the above information from the website of the Surrogate of Cumberland County.
Contact the Law Office of
Kenneth Vercammen & Associates, P.C.
732-572-0500
GLOSSARY
Administrator, Administratrix (also known as Personal Representative) -- Person or institution appointed by the court to manage and distribute the estate of a person who dies without a will.
Beneficiary -- Person named to receive property or benefits.
Codicil -- An addition or supplement made to change or add provisions to a will.
Contingent beneficiary -- Receiver of property or benefits if first-named beneficiary dies before receiving all benefits.
Contract -- Legally enforceable agreement.
Decedent -- A deceased person.
Devise -- To give real or Personal Property.
Estate -- Everything a person owns, all real and personal property owned.
Executor, Executrix (also known as Personal Representative) -- A person or institution named in the will to carry out the provisions and directions of the will.
Intestate -- A person who dies without making a valid will.
Legatee -- Person who receives personal property under a will.
Levied -- To collect by assessment.
Lien -- A charge upon property, real or personal, for the satisfaction of a debt.
Personal property -- Intangible property, such as stocks, bonds, or bank accounts; and tangible property such as Furniture, Automobile, and Jewelry.
Probate -- Official proof of the genuineness of a will.
Real property -- Land and buildings.
Surrogate -- A judicial officer who has jurisdiction over the probate of wills in the absence of a contest and acts as the Clerk of the Probate
Court in the settlement of estates, guardianships, and trusts.
Tenants in common -- Two or more persons owning individual interests in property.
Testator, Testatrix -- The person who makes a will.
Trust -- Property owned and managed by one person for the benefit of another.
Trustee -- Person or institution holding property in trust.
Waiver -- A legal instrument relinquishing a right or lien.
Will -- A legal declaration of the manner in which a person wishes his
estate divided after death.
Witness -- Person who observes the signing of a will and also attests to
the signatures.
This section Provided Courtesy Of Harry A. Freitag, Jr.,Surrogate of Cumberland County.


Sunday, April 3, 2016

Probate Contests

Probate Contests
   Do you think youre entitled to money or might be entitled to money from an estate or trust? Do you believe that someone is unfairly claiming money or property that is rightfully yours? Has The Executor of Administrator of the Estate not done their job? If so, and you are a prospective plaintiff or defendant, then you may need an attorney to protect your rights.  Ken Vercammen’s office charges a $200 consult fee either in person or over the phone.
Executor Duties 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 executors 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 weve 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.
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 deceaseds 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.
 Will/Trust Inheritance Contests
 If you have evidence a Will was not prepared properly, the signer was incompetent, there was undue influence, you may be able to prevent the filing of the Will in probate if you immediately hire an attorney to file a Caveat to the Will.
A. Caveat
      Is a formal notice by someone to prevent the proving of a Will or the grant of administration of an Estate. The following is one of the NJ Court Rules dealing with a Caveat to Will
RULE 4:82. MATTERS IN WHICH THE SURROGATE'S COURT MAY NOT ACT
     Unless specifically authorized by order or judgment of the Superior Court, and then only in accordance with such order or judgment, the Surrogate's Court shall not act in any matter in which
(1) a caveat has been filed with it before the entry of its judgment;
(2) a doubt arises on the face of a will or a will has been lost or destroyed;
(3) the application is to admit to probate a writing intended as a will as defined by N.J.S.A. 3B:3-2(b) or N.J.S.A. 3B:3-3;
(4) the application is to appoint an administrator pendente lite or other limited administrator;
(5) a dispute arises before the Surrogate's Court as to any matter; or
(6) the Surrogate certifies the case to be of doubt or difficulty.
          
     If there is no dispute on the validity of the Will, sometimes the Executor does not do their job and you want to have the Executor removed and replaced.

Under New Jersey Law, the person selected as an executor of a Will have 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 
         Unfortunately, the Executor occasionally fails to timely carry out their duties. They may fail to timely file tax returns, fail to keep records, misappropriate assets or ignore instructions under the Will.  
       In this case the Executor __ has failed to comply with the Duties of Executor in Probate & Estate Administration to:
1. Conduct a thorough search of the decedent's personal papers and effects for any evidence which might point them in the direction of a potential asset, namely mineral rights;
2. Keep records of expenses
3. Timely Sell real estate
4 Timely File required inheritance tax returns and provide a copy to Kim 
     It is unclear if the executor timely preformed the below duties:
Apply to Federal Tax ID #
Set up Estate Account at bank (pay all bills from estate account)
Pay Bills
Notice of Probate to Beneficiaries  
File notice of Probate with Surrogate  
File first Federal and State Income Tax  
Prepare Inheritance Tax Return and obtain Tax Waivers  
File waivers within 8 months upon receipt  
Prepares a accurate Informal Accounting
    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
         Do you think you're entitled to money or might be entitled to money from an estate or trust?  Do you believe that someone is unfairly claiming money or property that is rightfully yours?  If so, and you are a prospective plaintiff or defendant, then you may need an attorney to protect your rights.

         These areas are extremely complex, and you should not attempt to reach a decision on whether or not to take action (and, if so what action to take) without the assistance of counsel.
FILING SUIT IN AN ESTATE CONTEST
RULE 4:84. COMPLAINTS IN CASES IN WHICH SURROGATES COURT NOT ABLE TO ACT
4:84-1. In General
In any case in which, under R. 4:82, the Surrogates Court may not act, any person in interest may file a complaint and apply for an order directed to all other interested parties to show cause why the relief sought should not be granted. Service shall be as provided by R. 4:67-3.
4:84-2. Probate in the Superior Court
If a will is sought to be proved in the Superior Court, proceedings for discovery shall be available pursuant to R. 4:10, R. 4:12 to 4:19 inclusive, R. 4:21 and R. 4:23. On the taking of a deposition, a photocopy of the will shall be marked for identification by the person before whom the deposition is taken. If the will is admitted to probate, the judgment of the Superior Court shall direct that the will be filed with and recorded by the Surrogates Court. Letters of appointment shall then be issued by the Surrogates Court.
4:84-3. Contested Administration
Where administration of an estate has been contested, the judgment of the Superior Court granting administration shall direct issuance and recording of letters of administration by the Surrogates Court.
4:84-4. Appointment of Substituted Trustees
An action for the appointment of a substituted trustee (a trustee not named in the trust document) of an inter vivos or testamentary trust shall be brought pursuant to R. 4:83. The complaint shall have attached a copy of the trust instrument and the acceptance by the person or persons seeking the appointment. The order to show cause shall be served upon all persons having an interest in the trust, vested or contingent, except as otherwise provided by R. 4:26-3 (virtual representation), and upon any trustees then serving. The judgment shall direct the issuance by the Surrogates Court of letters of trusteeship.
4:84-5. Appointment of Administrator Pendente Lite or Other Limited Administrator
No order appointing an administrator pendente lite or other limited administrator shall be entered by the Superior Court without either notice to the persons in interest or their written consent, unless it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable damage will result before notice can be served and a hearing had thereon. If an order is granted without notice, it shall give any person in interest leave to move for the discharge of the administrator on no more than 2 days notice. This rule shall not apply to the administrator ad prosequendum in an action for wrongful death.
RULE 4:85. REVIEW BY SUPERIOR COURT OF ACTIONS BY SURROGATES COURT: GENERAL PROVISIONS
4:85-1. Complaint; Time for Filing
If a will has been probated by the Surrogates Court or letters testamentary or of administration, guardianship or trusteeship have been issued, any person aggrieved by that action may, upon the filing of a complaint setting forth the basis for the relief sought, obtain an order requiring the personal representative, guardian or trustee to show cause why the probate should not be set aside or modified or the grant of letters of appointment vacated, provided, however, the complaint is filed within four months after probate or of the grant of letters of appointment, as the case may be, or if the aggrieved person resided outside this State at the time of the grant of probate or grant of letters, within six months thereafter. If relief, however, is sought based upon R. 4:50-1(d), (e) or (f) or R. 4:50-3 (fraud upon the court) the complaint shall be filed within a reasonable time under the circumstances. The complaint and order to show cause shall be served as provided by R. 4:67-3. Other persons in interest may, on their own motion, apply to intervene in the action.
4:85-2. Enlargement of Time
The time periods prescribed by R. 4:85-1 may be extended for a period not exceeding 30 days by order of the court upon a showing of good cause and the absence of prejudice.
4:85-3. After-Discovered Will
(a) Order to Show Cause. Where administration has been granted and subsequently a will is offered for probate or where probate of a will has been granted and subsequently a later will is offered for probate, the person offering such will may, upon the filing of a complaint, move without notice for an order requiring all interested persons to show cause why probate of such will should not be granted. The complaint shall be filed in the county where the original administration or probate was granted. If, on the return date or thereafter, new probate is granted, the court shall require the administrator or prior executor to make final settlement of his or her account and thereafter shall make such order respecting commissions as is appropriate.
(b) Probate by Surrogate. If, on the return date of the order to show cause, there is no objection to the offering of the after-discovered will for probate, the Surrogate may enter an order that it be lodged for probate and thereafter proceed with probate unless a caveat has been filed or doubt arises from the face of the will.
KENNETH VERCAMMEN, ESQ.
RECENT SPEAKING ENGAGEMENTS ON WILLS, ELDER LAW, AND PROBATE Edison Adult School -Wills, Elder Law & Probate- 2011, 2007, 2006, 2005, 2004, 2003, 2002, 2001, 2000,1999,1998,1997 Old Bridge AARP 2002; Guardian Angeles/ Edison 2002; St. Cecelia/ Woodbridge Seniors 2002; Temple Beth Or 2002; -Linden AARP 2002 Woodbridge Housing 2001; Chelsea/ East Brunswick 2001, Village Court/ Edison 2001; Old Bridge Rotary 2001; Sacred Heart/ South Amboy 2001; Livingston Manor/ New Brunswick 2001 -Wills and Estate Administration - Woodbridge Adult School 2001, 2000,1999,1998,1997,1996 -Wills and Elder Law - Metuchen Adult School 1999,1997,1996,1995,1994,1993 -Clara Barton Senior Citizens- Wills & Elder Law-Edison 2002, 1995 -AARP Participating Attorney in Legal Plan for NJ AARP members -Senior Legal Points University of Medicine & Dentistry UMDNJ & St. Peters-2000, 1999,1998 -East Brunswick AARP Wills 2001 -Iselin/ Woodbridge AARP Wills 2000 -Metuchen Reformed Church; Franklin/ Somerset/ Quailbrook Seniors 2001 -North Brunswick Senior Day 2001 -Wills, Elder Law and Probate-South Brunswick Adult School 1999,1997,1993 -Wills and Estate Planning-Old Bridge Adult School 1998,1997,1995 -Senior Citizen Law-Perth Amboy YMHA 1995 -Wills, Living Wills and Probate-Spotswood Community School 1995,1994,1993 -Wills and Probate-Sayreville Adult School 1997, 1996,1995,1994 -Living Wills-New Jersey State Bar Foundation and St. Demetrius, Carteret 1994 -Wills and Estate Planning-Edison Elks and Senior Citizens January 1994 -Legal Questions Clinic Metuchen Adult School March 1995,1994,1993 -Estate Planning to Protect Families-Metuchen Chamber of Commerce April 1993 -Living Wills-Dean Witter and Nordstroms, Menlo Park Mall October 1992; Trusts and Living Wills-Dean Witter, Metro Park, June 1992; Estate Planning-North Brunswick Republican Club May 1992; -Wills and Power of Attorney 1991 Edison Democratic Association
New Jersey State Bar Association -General Practice Section-Board of Directors 1995- Present
ADJUNCT PROFESSOR Middlesex County College Edison, NJ February, 2001-April, 2001; Jan. 1990-May, 1991
New Jersey Superior Court - Certified Mediator 1997- New Jersey Supreme Court Committee on Municipal Court Education: Appointed by Chief Justice Robert N. Wilentz 1990 - 1997