Kenneth Vercammen is a Middlesex County trial attorney who has published 130 articles in national and New Jersey publications on Criminal Law and litigation topics. He was awarded the NJ State State Bar Municipal Court Practitioner of the Year. He lectures and handles criminal cases, Municipal Court, DWI, traffic and other litigation matters. He is Co Chair of the ABA Criminal Law Committee, GP and was a speaker at the ABA Annual Meeting. To schedule a confidential consultation, email us at: VercammenAppointments@NJlaws.com, call or visit Website: http://www.njlaws.com.

Kenneth Vercammen & Associates, P.C,

2053 Woodbridge Avenue,

Edison, NJ 08817,

(732) 572-0500,

www.njlaws.com

Monday, October 26, 2009

Order to Show Cause in Probate

Order to Show Cause in Probate

Under New Jersey Law, the people 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 tax returns, file paperwork with the surrogate, then distribute the assets to beneficiaries. If there is no will, someone can petition the surrogate to be appointed as "administrator" of the estate.
In New Jersey, the court and surrogate do not supervise how an executor or administrator handles the estate. Unfortunately, occasionally the Executor simply 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 you are not satisfied with the handling of the estate, you can have an attorney to file a complaint, and an Order to Show Cause in Probate in the Superior Court.

COMPLAINT TO COMPEL FOR ACCOUNTING BY EXECUTOR OR ADMINISTRATOR

A Complaint to Compel Accounting is filed with the Probate Part to request on accounting, removal of the current executor and selection of a new person to administer and wrap up the estate. A signed certification of one or more beneficiaries is needed. In addition, an Order to Show Cause is prepared by your attorney. The Order to Show Cause is to be signed by the Judge directing the executor, through their attorney, to file a written answer to the complaint, plus to 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 $200-$310 per hour, with a retainer of $3000 needed. Attorneys will require the retainer to be paid in full up front.

EXECUTOR'S COMMISSIONS

Executors are entitled to receive a commission to compensate them for work performed. Under NJSA 3B:18-1 et seq. Executors, administrators and other fiduciaries are entitled to receive a commission on both principal of the estate, and income earned by assets. However, if you have evidence the executor has breached their fiduciary duties or violated a law, your Superior Court accounting complaint and Order to Show Cause can request that the commissions be reduced or eliminated.

SALE OF REAL ESTATE AND OTHER PROPERTY

Occasionally, a family member is living in a home owned by the descendant. To keep family harmony, often this family member is permitted to remain in the home temporarily. However, it sometimes later becomes clear that the resident has no desire on moving, and the executor has no intention to make them move or sell the house. The remedy a beneficiary has can be to have your attorney file in the Superior Court a complaint to include 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 sale of the property 4) make the executor reimburse the estate for the neglect or waste of assets.

COURT RULE 4:84. THE FOLLOWING ARE COMPLAINTS IN CASES IN WHICH SURROGATE'S COURT NOT ABLE TO ACT 4:84-1. In General

In any case in which, under R. 4:82, the Surrogate's 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 Surrogate's Court. Letters of appointment shall then be issued by the Surrogate's 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 Surrogate's 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 testatmentary 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 Surrogate's 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.

The following is a form of a Complaint and Order to Show Cause we used in 2004.

Attorney for Plaintiff, p1

IN THE MATTER OF THE ESTATE OF d1,

p1 Plaintiff, vs.

d2 Defendants. SUPERIOR COURT OF NEW JERSEY CHANCERY DIVISION: c1 COUNTY

DOCKET NO. Probate

Civil Action VERIFIED COMPLAINT TO COMPEL ACCOUNTING, REMOVAL OF EXECUTOR, AND APPOINTMENT OF p1 AS ADMINISTRATOR OF THE ESTATE

Plaintiff, p1, residing at ________, State of New Jersey, by way of complaint against defendant, d2 says: FIRST COUNT- ACCOUNTING 1. d1, while a resident of the Township of ___________, County of __________, State of New Jersey, died on ________, leaving surviving as his next of kin, _____ children, p1 and d2 and. 2. The defendant, failed to promptly provide plaintiff with copy of a Will executed by the decedent, d1 (Exhibit 1). 3. Only after requests for information from plaintiff was a copy of the Will executed by the decedent furnished by the defendant, d2 to plaintiff. 4. Plaintiff is a beneficiary under the Last Will and Testament of d1. Plaintiff as one of the surviving children of the decedent is entitled if there is no Will to a portion of the estate. 5. The defendants, d2 had control over d1's finances and care prior to death. 6. It has been brought to the attention of the plaintiff that decedent's assets may have been distributed by d2. 7. No formal accounting in connection with the estate has been filed by the named executor d2 with the Surrogate. 8. Plaintiff has been informed by d2 that a formal accounting will not be filed with the Surrogate. 9. The estate is still open. Defendant d2 has received assets of the estate and disbursed some without Surrogate approval or court approval. 10. Plaintiff is entitled to an accounting of the estate assets. 11. Plaintiff is also entitled to an accounting of all of the assets of d1 that came into the hands of defendant, d2, during the last four years of d1's lifetime. 12. Plaintiff should also be entitled to an accounting of the money received and expended by d2, the names of claims presented against the estate and against d1 during the five years prior to his death, the names of the claims and any other matters necessary to show the value and condition of the affairs of the estate. 13. Plaintiff is entitled to have the accounting rendered by d2 and a final distribution of the estate made to plaintiff. WHEREFORE, plaintiff demand the following: (1) That the named executor, d2, be ordered to provide an accounting of the estate to plaintiff. (2) Defendant, d2, be ordered to provide an accounting for all assets of d1 dated five years prior to his death. (3) Payment of plaintiff's attorney's 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 d2 be removed as the executor/administrator of the estate and that p1 be named as administrator of the estate. (6) That d2 be barred from spending an 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. (7) Plaintiff be granted further relief as the court will deem just.

SECOND COUNT 1. Plaintiff repeats the First Count as if set forth at length herein. 2. d2 has failed to comply with the fiduciary responsibilities to the estate and to the beneficiaries. 3. Plaintiff requests an Order barring and removing d2 from serving as executor of the estate. 4. Plaintiff requests an Order barring d2 's appointment as administrator of the estate. WHEREFORE, plaintiff demands the following: (1) That the named executor, d2, be ordered to provide an accounting of the estate to plaintiff and barring d2 from serving as executor or administrator of the estate. (2) Barring d2 from serving as executrix or administrator of the estate. (3) Payment of plaintiff's attorney's fees and costs of suit for the within action. (4) Appointing p1 as administrator/CTA of the estate. (5) Plaintiff be granted further relief as the court will deem just.

ORDER TO SHOW CAUSE IN ACTION TO COMPEL AN ACCOUNT, REMOVAL OF EXECUTOR, AND APPOINTMENT OF P1 AS ADMINISTRATOR OF ESTATE

Upon reading and filing the complaint of p1: It is on this ______________ day of _______________, 2004 ORDERED that d2, Executor of the Estate of d1, deceased, show cause before the court on the _______ day of _____________ , 2004, at ________ A.M. at the c1 County Court House, New Jersey, 1 why d2 should not be compelled to file an accounting within 45 days, 2 why d2 should not be removed and barred from serving as executor, 3 why d2 and should not be required to refund to the estate all monies received 4 why P1 should not be appointed administrator/trix of the estate 5 why d2 should not make discovery as to the condition of the estate of d1, deceased, before and after the date of death (6) That the named executor, d2, be ordered to provide an accounting of the estate to plaintiff. (7) for Payment of plaintiff's attorney's fees and costs of suit for the within action. (8)To Declare a constructive trust of the assets of the decedent for the benefit of the plaintiff and the estate. (9) Why d2 should be barred from spending an 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.

and it is Further Ordered that a copy of this Order and the Complaint upon which it is based, certified to be true by the attorney for plaintiff, be served upon said d2 by mailing same to d2 by certified mail, return receipt requested, at least ten days before the return date hereof.

It is further ORDERED that the defendant file an answer to the verified complaint within 20 days of the date of service, and

It is further ordered that all answering affidavits of certifications, of any, be filed three days prior to the return date.

Civil Action

ORDER TO REMOVE EXECUTOR, COMPEL AN ACCOUNT, AND APPOINTMENT OF P1 AS ADMINISTRATOR OF THE ESTATE This matter having been opened to the Court upon Order to Show Cause and Complaint by Kenneth A. Vercammen, Esq. , attorney for p1, for an Order: (1) why d2 should not be compelled to file an accounting within 45 days, (2) why d2 should not be removed and barred from serving as executor, (3) why d2 and should not be required to refund to the estate all monies received (4 )why P1 should not be appointed administrator/trix of the estate (5) why d2 should not make discovery as to the condition of the estate of d1, deceased, before and after the date of death (6) That the named executor, d2, be ordered to provide an accounting of the estate to plaintiff. (7) for Payment of plaintiff's attorney's fees and costs of suit for the within action. (8)To Declare a constructive trust of the assets of the decedent for the benefit of the plaintiff and the estate. (9) Why d2 should be barred from spending an 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.

and the Court having considered the Certification submitted, documents attached in support of the Motion, and the argument of counsel, if any, and for good cause shown,

it is on this ______ day of ______________ 2004

ORDERED that 1. d2 is required to file a formal accounting within 45 days of the court hearing, 2 d2 is barred and discharged from serving as executor, 3 d2 is required to refund to the estate all monies received 4 . p1 is appointed administrator of the estate 5 d2 should make discovery as to the condition of the estate of the deceased, after the date of death 6 d2 is be barred from spending an estate funds, is barred from paying any bills, be barred from taking a commission, is barred from writing checks, is barred from acting on behalf of the estate, except as specifically authorized by Superior Court Order or written consent by the plaintiff.

CONCLUSION

As a beneficiary, the heir 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 elder law attorney.