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, call us or New clients email us evenings and weekends go to www.njlaws.com/ContactKenV.htm

Kenneth Vercammen & Associates, P.C,

2053 Woodbridge Avenue,

Edison, NJ 08817,

(732) 572-0500,

www.njlaws.com

Monday, October 17, 2011

Probate Release Refund Bond

Probate Release Refund Bond

Notice of Probate to Beneficiaries by an Executor- NJ Court Requirements

RULE 4:80. APPLICATION TO SURROGATE'S COURT FOR PROBATE OR ADMINISTRATION

4:80-1. Application

(a) Contents. Unless a complaint for probate is filed with the Superior Court pursuant to R. 4:83, an application for the probate of a will, for letters testamentary, letters of administration, letters of administration of non-resident estates in which administration has not been sought in the decedent's state of residence, letters of administration with the will annexed, letters of administration ad prosequendum, letters of substitutionary administration and letters of substitutionary administration with the will annexed shall be filed with the Surrogate's Court, stating:

(1) the applicant's residence;

(2) the name and date of death of the decedent, his or her domicile at date of death and date of the last will, if any, of decedent;

(3) the names and addresses of the spouse, heirs, next of kin and other persons, if any, entitled to letters, and their relationships to decedent, and, to the best of the applicant's knowledge and belief, identifying any of them whose names or addresses are unknown and stating further that there are no other heirs and next of kin;

(4) the ages of any minor heirs or minor next of kin; and in an application for probate of a will, whether the testator had issue living when the will was made, and whether he or she left any child born or adopted thereafter or any issue of such after-born or adopted child, and the names of after-born or adopted children since the date of the will, or their issue, if any. The applicant shall verify under oath that the statements are true to the best of the applicant's knowledge and belief (your probate attorney can help you with this).

(b) Certificates, Affidavits Accompanying the Application. Except in an application for substitutionary letters, the application shall be accompanied by a certificate of death or other competent proof thereof, unless for good cause dispensed with; and in all applications where a bond is required of the person applying for letters, the application shall be accompanied by an affidavit of the value of the personal estate.

(c) Filing. The application for the probate of a will or for letters of administration shall be filed with the Surrogate's Court of the county in which the decedent was domiciled at death, or if at that time the decedent was not domiciled in this State, then with the Surrogate's Court of any county in which the decedent left any property or into which any property belonging to the decedent's estate may have come.

(d) Recording. The application shall be recorded by the Surrogate's Court.

4:80-6. Notice of Probate of Will

Within 60 days after the date of the probate of a will, the personal representative shall cause to be mailed to all beneficiaries under the will and to all persons designated by R. 4:80-1(a)(3), at their last known addresses, a notice in writing that the will has been probated, the place and date of probate, the name and address of the personal representative and a statement that a copy of the will shall be furnished upon request (many executors and administrators hire an attorney to handle the required notices).

Proof of mailing shall be filed with the Surrogate within 10 days thereof. If the names or addresses of any of those persons are not known, or cannot by reasonable inquiry be determined, then a notice of probate of the will shall be published in a newspaper of general circulation in the county naming or identifying those persons as having a possible interest in the probate estate. If by the terms of the will property is devoted to a present or future charitable use or purpose, like notice and a copy of the will shall be mailed to the Attorney General.

Release and Refunding Bond

It is also the duty of the fiduciary [Executor or Administrator] to make arrangements to pay bills and other estate expenses and carry out instructions under the will. Later the fiduciary and its attorney should file any applicable tax notices or tax returns. Thereafter, NJSA 3B:23-24 provides the fiduciary shall take a Release and Refunding Bond from each beneficiary.

We will not be able to file the NJ inheritance tax return until it is clear as to the amounts of the medical bills. Medical expenses can be deducted in the inheritance tax. A copy of the list of assets that can be deducted on the inheritance tax is attached hereto.

Since you will be involved as the Personal Representative of this Estate, you should be aware that, pursuant to the relativity recent 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.

It is our recommendation that you undertake the following measures:

1. conduct a thorough search of the decedent's personal papers and effects for any evidence which might point you in the direction of a potential creditor; 2. carefully examine the decedent's checkbook and check register for recurring payments, as these may indicate an existing debt; 3. contact the issuer of each credit card that the decedent had in his/her possession at the time of his/ her death; 4. contact all parties who provided medical care, treatment, or assistance to the decedent prior to his/her death;

I realize that attempting to uncover and contact such creditors may be a demanding task. However, the Pope case is quite explicit in its requirements. In that case, a "readily ascertainable" debt pertaining to the last illness of the decedent appeared five years after the death of the decedent. The U.S. Supreme Court decided that the claim was valid, and had to be paid. The Personal Representative was held personally responsible for the outstanding debt, as all estate assets had been previously distributed. In light of this result, it is our responsibility, as your attorneys, to work with you in an effort to be certain that all such creditors are properly notified so that you will not be liable for the payment of any such claims and that all Estate assets, at the close of administrative and/or when distributed, are free and clear of any prospective claims.

During the course of our representation we will submit for payment periodic statements or invoices for services rendered during the previous period and for reimbursable costs and expenses incurred during the previous period. Payment is due upon receipt of your invoice. In the event you default on your obligation to pay our fees and costs, you agree to pay any attorney's fees and costs of collection incurred by us and you agree to pay for the time we expend in such collection efforts (including time spent preparing and attending any fee arbitration proceedings at our usual hourly rates plus costs and expenses.)

Most Executors and Administrators hire an attorney to prepare the Release and Refunding Bond. The beneficiary must sign in front of a notary or attorney, and return the signed Release to our office. Upon receipt the Executor/ Administrator can send their check by certified mail.

3B:23-24. Refunding bond of devisee or distributee A personal representative shall, on paying a devise or distributive share or on delivering an instrument of distribution to the person entitled, take a refunding bond therefor, to be filed in the office of the surrogate of the county wherein he received his letters or in the office of the clerk of the Superior Court, if he received his letters from the Superior Court.

3B:23-25. Amount of bond; form The bond required under N.J.S. 3B:23-24 or N.J.S. 3B:23-33 shall be in the amount or value of the devise or allotted distributive share and shall be sufficient, if signed by the devisee or distributee, or his guardian, as the case may be, without any sureties whatever.

3B:23-26. Condition of devisee's bond The bond of a devisee shall be conditioned substantially as follows: That if any part or the whole of the devise shall at any time thereafter be needed to discharge any debt or debts, devise or devises, which the personal representative may not have other assets to pay, he, the devisee, will return his devise or that part thereof as may be necessary for the payment of the debts, or for the payment of a proportional part of the devises.