App.A:9_47. Suspension of motor vehicle or other regulations

App.A:9_47. Suspension of motor vehicle or other regulations

The Governor is authorized to provide by his rules and regulations that any motor vehicle regulation or traffic act provision or any other regulatory provision of law, the enforcement of which will be detrimental to the public welfare during any black_out, air raid, threatened air raid, preparations for emergencies or during the threat or imminence of danger in emergency, shall be suspended during such black_out, air raid, threatened air raid, preparations for emergencies or during the threat or imminence of danger. The judgment of the Governor on all such matters shall be conclusive. L.1942, c. 251, p. 686, s. 15. Amended by L.1953, First Sp.Sess., c. 438, p. 2411, s. 19.

App.A:9_45. Orders, rules, and regulations; black_outs, air raids, etc.; posting

App.A:9_45. Orders, rules, and regulations; black_outs, air raids, etc.; posting

In order to accomplish the purposes of this act, the Governor is empowered to make such orders, rules and regulations as may be necessary adequately to meet the various problems presented by any emergency and from time to time to amend or rescind such orders, rules and regulations, including among others the following subjects: 

1. On matters pertaining to the method of conducting black_outs, partial black_outs, and modifying and controlling illumination, and pertaining to the conduct of the civilian population of this State during such black_outs, partial black_outs, and periods during which illumination is modified. 
2. On matters pertaining to air raid warnings and air raids and the conduct of the civilian population during the alert period of an air raid or of a threatened or impending air raid and during and following any air raid. 
3. Concerning the organization, recruiting, training, conduct, duties and powers of volunteer agencies, including air raid wardens, auxiliary police and firemen, demolition and clearance crews, fire watchers, road repair crews, rescue squads, medical corps, nurses' aides corps, decontamination squads, drivers' corps, messengers' corps, emergency food and housing corps, utility repair squads, and all other civilian protection forces exercising or performing any functions or duties in connection with the problems of local civilian defense or emergency management. 
4. The designation of vehicles and persons permitted to move during air raids or any emergency.
5. The conduct of the civilian population during the threat of and imminence of danger or any emergency.
6. The method of meeting threatened air raid danger insofar as it affects the children in our schools.
7. Concerning the meeting or counteracting of threatened and actual sabotage, subversive activities, and other dangers incident to any emergency.
8. Concerning the method of evacuating residents of threatened districts and the course of conduct of the civilian population during any necessary evacuation.
9. On any matter that may be necessary to protect the health, safety and welfare of the people or that will aid in the prevention of loss to and destruction of property.
10. Such other matters whatsoever as are or may become necessary in the fair, impartial, stringent and comprehensive administration of this act.

All such orders, rules and regulations when established shall be forthwith promulgated by proclamation of the Governor, which promulgation shall be deemed to be sufficient notice to the public. All such orders, rules and regulations when promulgated shall be binding upon all political subdivisions, public agencies, public officials and public employees of this State. All such orders, rules and regulations having to do with the conduct of persons which shall be adopted by the Governor and promulgated as provided herein shall be binding upon each and every person within this State. Upon the adoption and promulgation of orders, rules and regulations as provided above, the civilian defense director shall send a copy to the municipal emergency management coordinator and to the clerk of each municipality of this State in which such order, rule or regulation will take effect. The said municipal clerk shall forthwith post any such order, rule or regulation in a public place in the municipal building. L.1942, c.251, s.13; amended 1953,c.438,s.16; 1989,c.222,s.12.

App.A:9_51. Extraordinary emergencies; powers; compensation boards; proceedings for compensation

App.A:9_51. Extraordinary emergencies; powers; compensation boards; proceedings for compensation

1. Whenever, in his opinion, the control of any disaster is beyond the capabilities of local authorities, the Governor is authorized: 
   
   
   1. To assume control of all emergency management operations.
   2. To proclaim an emergency if he deems the same necessary.
   3. Temporarily to employ, take or use the personal services, or real or personal property, of any citizen or resident of this State, or of any firm, partnership or unincorporated association doing business or domiciled in this State, or of any corporation incorporated in or doing business in this State, or the real property of a nonresident located in this State, for the purpose of securing the defense of the State or of protecting or promoting the public health, safety or welfare; provided, that such personal services or property shall not be employed or used beyond the borders of this State unless otherwise authorized by law. 
2. Compensation for any personal services required of any natural person under the provisions of subsection a. of this section shall be paid at the prevailing established rate for services of a like or similar nature.
3. There is hereby established an emergency compensation board in and for each county of the State, to be composed of three persons appointed by the Governor who shall serve at the will and pleasure of the Governor and without compensation. Wherever the volume of work makes it necessary, the Governor may appoint one or more additional emergency compensation boards in any county of this State. The emergency compensation board shall award reasonable compensation to the party entitled thereto for any property employed, taken or used under the provisions of this subsection and for any injury caused by such employment, taking or using. Any party who deems himself entitled to such compensation as is provided for in this section may file a petition for an award with the board, naming the State as defendant. Such petition shall be filed with an emergency compensation board in the county in which the property was located at the time it was employed, taken or used. A copy of said petition shall be served on the Attorney General. The board shall thereupon after reasonable and proper notice to the petitioner and the Attorney General, grant a hearing upon such petition and render a decision fixing the amount of the award. This award shall be paid within one year after the decision is rendered from any funds appropriated by the State for such purpose. 
4. Any party who deems himself aggrieved by the decision of an emergency compensation board of any county shall have the right to bring an action for such compensation against the State as defendant in the Superior Court, according to the practice and procedure covering condemnation proceedings in such court. Either the State or the petitioner shall have a right to trial by jury in such court. 
5. When, in the opinion of the Governor, the period of emergency under which action has been taken by him as provided under subsection a. of this section has passed, he shall issue a proclamation declaring its end and suspending the powers granted to him under subsection a. of this section and no petition for an award as provided for in subsection c. shall be filed after one year from the date of the Governor's proclamation declaring the end of the emergency; provided, that any member of the Armed Forces of the United States whose property was employed, taken or used as provided in said subsection a. of this section may file such petition within two years after the Governor's proclamation. L.1942, c.241, s.19; amended 1953,c.438,s.24; 1989,c.222,s.15.

App.A:9_40. Co_operation by public officials; rules and regulations

App.A:9_40. Co_operation by public officials; rules and regulations

It shall be the duty of the members of the governing body and of each and every officer, agent and employee of every political subdivision of this State and of each member of all other governmental bodies, agencies and authorities of any nature whatsoever fully to co_operate with the Governor and the civilian defense director in all matters affecting any emergency as defined by this act. The Governor is authorized to make, amend and rescind orders, rules and regulations as in this act provided, and it shall be unlawful for any municipality or other subdivision or any other governmental agency of this State to adopt any rule or regulation or to enforce any such rule or regulation that may be at variance with any such order, rule or regulation established by the Governor. In the event of a dispute on the question of whether or not any such rule or regulation is at variance with an order, rule or regulation established by the Governor under this act, the determination of the Governor shall control. L.1942, c. 251, p. 682, s. 8. Amended by L.1953, First Sp.Sess., c. 438, p. 2406, s. 7.

App.A:9-35 . Co-operation with state and federal authorities; federal emergency or defense assistance; agreements

App.A:9-35 .  Co-operation with state and federal authorities;  federal emergency or defense assistance;  agreements

    (a) In carrying out the provisions of this act the Governor shall cooperate  with the civil, military and naval authorities of the United States and of  other States for the purpose of enforcing the defense and emergency policies of  the Federal Government and shall conform to the laws, orders, rules and  regulations of the civilian, military and naval authorities of the Federal  Government.

    (b) The Governor or his designated representative is hereby authorized to enter into such agreements with the Federal Government or an agency thereof as he shall deem necessary to obtain available emergency or defense assistance from the Federal Government or its agencies and to do all other acts or things necessary or convenient to secure such assistance.  The Governor shall not commit the State to any financial obligation except to the extent of available appropriations, provided, however, that any such agreement may specify (1) that  the State will agree to hold and save the United States free from damages which  may arise out of the construction, repairs, improvements or rehabilitation, and  the maintenance of works and projects undertaken by the Federal Government or  its agencies in connection with any such agreement, other than claims arising  from the tortious acts of agents or employees of the Federal Government and (2)  that the State will provide, free of cost to the United States, all lands,  easements, rights-of-way and other areas within the State of New Jersey  required in connection with the project undertaken by the Federal Government or  its agencies in respect of such agreement, and for the maintenance thereafter of such project.  Any such provisions to hold and save the Federal Government  free from damages shall not be construed to waive the sovereign immunity of the  State in any situation wherein such immunity would otherwise be present.  Such  sums as may be required, whether in payment of the cost of necessary legal  proceedings, as compensation to property owners, or in furtherance of the  provisions herein authorized for such agreements, shall be charged against any  special or emergency appropriation made by the Legislature in connection with  the project which is the subject matter of the agreement with the Federal  Government or its agencies.

App.A:9-34 . Emergency powers of Governor

App.A:9-34 .  Emergency powers of Governor

    The Governor is authorized to utilize and employ all the available resources  of the State Government and of each and every political subdivision of this  State, whether of men, properties or instrumentalities, and to commandeer and  utilize any personal services and any privately owned property necessary to  avoid or protect against any emergency subject to the future payment of the  reasonable value of such services and privately owned property as hereinafter  in this act provided.

26 :13-5 Duties of commissioner relative to public health emergency.

26 :13-5  Duties of commissioner relative to public health emergency.

   5.   Where the commissioner has reasonable grounds to believe a public health emergency exists, the commissioner shall: ascertain the existence of cases of an illness or health condition that may be potential causes of a public health emergency; investigate all such cases for sources of infection and ensure that they are subject to proper control measures; and define the distribution of the illness or health condition.  To fulfill these duties, the commissioner shall identify exposed individuals as follows:

   a.   The commissioner shall identify individuals thought to have been exposed to an illness or health condition that may be a potential cause of a public health emergency.

   b.   The commissioner shall counsel and interview such individuals where needed to assist in the positive identification of exposed individuals and develop information relating to the source and spread of the illness or health condition. The information shall include the name and address, including city and county, of any person from whom the illness or health condition may have been contracted and to whom the illness or health condition may have spread.

26 :13-4 Investigation of incident, imminent threat; reporting requirements.

26 :13-4  Investigation of incident, imminent threat; reporting requirements.

   4. a. In order to detect the occurrence or imminent threat of an occurrence of a public health emergency as defined in this act, the commissioner may take reasonable steps to investigate any incident or imminent threat of any human disease or health condition.  Such investigation may include, and the commissioner may issue and enforce orders requiring, information from any health care provider or other person affected by, or having information related to, the incident or threat, inspections of buildings and conveyances and their contents, laboratory analysis of samples collected during the course of such inspection, and where the commissioner has reasonable grounds to believe a public health emergency exists, requiring a physical examination or the provision of specimens of body secretions, excretions, fluids and discharge for laboratory examination of any person suspected of having a disease or health condition that necessitates an investigation under this subsection, except where such action would be reasonably likely to lead to serious harm to the affected person. 

   In instances involving an overlap agent or toxin, the Department of Agriculture shall be the lead agency with respect to surveillance, testing, sampling, detection and investigation related to animals, plants or crops under the jurisdiction of the Department of Agriculture pursuant to the provisions of Title 4 of the Revised Statutes, and shall coordinate its activities with all appropriate local, State and federal agencies.

   b.   A health care provider or medical examiner shall report to the department and to the local health official all cases of persons who harbor or are suspected of harboring any illness or health condition that may be reasonably believed to be potential causes of a public health emergency. Reportable illnesses and health conditions include, but are not limited to, any illnesses or health conditions identified by the commissioner.

   c.   In addition to the foregoing requirements for health care providers, a pharmacist shall, at the direction of the commissioner, report:

   (1)   an unusual increase in the number or type of prescriptions to treat conditions that the commissioner identifies by regulation;

   (2)   an unusual increase in the number of prescriptions for antibiotics; and

   (3)   any prescription identified by the commissioner that treats a disease that is relatively uncommon or may be associated with terrorism.

   d.   The reports shall be made to such State and local officials in accordance with the method and time frame as specified by the commissioner. The reports shall include the specific illness or health condition that is the subject of the report and a case number assigned to the report that is linked to the patient file in possession of the health care provider or medical examiner, along with the name and address of the health care provider or medical examiner.  Based on any such report, where the commissioner has reasonable grounds to believe that a public health emergency exists, the health care provider or medical examiner shall provide a supplemental report including the following information: the patient's name, date of birth, sex, race, occupation, current home and work addresses, including city and county, and relevant telephone contact numbers; the name and address of the health care provider or medical examiner and of the reporting individual, if different; designated emergency contact; and any other information needed to locate the patient for follow-up.

   e.   The provisions of this section shall not be deemed or construed to limit, alter or impair in any way the authority of the Department of Environmental Protection pursuant to "The Radiation Accident Response Act," P.L.1981, c.302 (C. 26 :2D-37 et seq.), or of the State Office of Emergency Management in the Division of State Police, Department of Law and Public Safety.  Any powers of inspection of buildings and conveyances for sources of radiation that are granted to the commissioner shall only be exercised upon the concurrence of the Commissioner of Environmental Protection.

   f.   The provisions of this section shall not be deemed or construed to limit, alter or impair in any way the authority of the Department of Agriculture pursuant to its jurisdiction under the laws and policies governing that department.

   L.2005,c.222,s.4.

26 :13-3 Declaration of public health emergency. NJ

26 :13-3  Declaration of public health emergency. NJ

   3. a. The Governor, in consultation with the commissioner and the Director of the State Office of Emergency Management, may declare a public health emergency.  In declaring a public health emergency, the Governor shall issue an order that specifies:

   (1)   the nature of the public health emergency;

   (2)   the geographic area subject to the declaration;

   (3)   the conditions that have brought about the public health emergency to the extent known; and

   (4)   the expected duration of the state of public health emergency, if less than 30 days. Such order may also prescribe necessary actions or countermeasures to protect the public's health.

   b.   Any public health emergency declared pursuant to this act shall be terminated automatically after 30 days unless renewed by the Governor under the same standards and procedures set forth in subsection a. of this section.

   c.   The commissioner shall coordinate all matters pertaining to the public health response to a public health emergency, and shall have primary jurisdiction, responsibility and authority for:

   (1)   planning and executing public health emergency assessment, prevention, preparedness, response and recovery for the State;

   (2)   coordinating public health emergency response between State and local authorities;

   (3)   collaborating with relevant federal government authorities, elected officials and relevant agencies of other states, private organizations or companies;

   (4)   coordinating recovery operations and prevention initiatives subsequent to public health emergencies; and

   (5)   organizing public information activities regarding public health emergency response operations.

   All such activities shall be taken in coordination with the State Office of Emergency Management and shall be executed in accordance with the State Emergency Operations Plan.  The State Office of Emergency Management shall provide the commissioner with all required assistance.

   d.   In instances involving an overlap agent or toxin that causes or has the potential to cause a public health emergency, if the Commissioner of Health and Senior Services suspects or detects conditions that could potentially affect animals, plants or crops under the jurisdiction of the Department of Agriculture pursuant to the provisions of Title 4 of the Revised Statutes, he shall immediately notify the Secretary of Agriculture.  If the Secretary of Agriculture suspects or detects conditions that could potentially affect humans, he shall immediately notify the commissioner.  Information shared by each department shall be held confidential by the departments and their employees and their designees, and shall not be released without the approval of the department that was the source of the information.

   e.   To the fullest extent practicable, the commissioner shall also promptly notify the elected municipal officials and applicable health care facilities of the jurisdiction affected by the public health emergency of the nature and extent of the emergency.

   f.   All orders of the commissioner shall remain in effect during the period of the public health emergency until superseded by order of the Governor pursuant to P.L.1942, c.251 (C.App.A:9-33 et seq.). Upon the issuance of an order by the Governor pursuant to P.L.1942, c.251, the commissioner shall coordinate the public health emergency in accordance with the State Emergency Operations Plan.  Upon declaration of a disaster pursuant to P.L.1942, c.251, the Governor may exercise the powers granted to the commissioner pursuant to this act.

   L.2005,c.222,s.3.

I researched what gives the Governor the power to close bars, VFW, Elks club and impose restrictions in Executive Order 103. Here are some of the statutes that were invoked. "Emergency Health Powers Act." 26 :13-2 Definitions relative to emergency health powers.

I researched what gives the Governor the power to close bars, VFW, Elks club and impose restrictions in Executive Order 103.

Here are some of the statutes that were invoked.

"Emergency Health Powers Act."

26 :13-2  Definitions relative to emergency health powers.

 
   2.   As used in this act:

   "Biological agent" means any microorganism, virus, bacterium, rickettsiae, fungus, toxin, infectious substance, or biological product that may be naturally occurring or engineered as a result of biotechnology, or any naturally occurring or bioengineered component of any such microorganism, virus, bacterium, rickettsiae, fungus, infectious substance, or biological product, capable of causing death, disease, or other biological malfunction in a human, an animal, a plant, or another living organism.

   "Bioterrorism" means the intentional use or threat of use of any biological agent, to cause death, disease, or other biological malfunction in a human, animal, plant, or other living organism, or degrade the quality and safety of the food, air, or water supply.

   "Chemical weapon" means a toxic chemical and its precursors, except where intended for a lawful purpose as long as the type and quantity is consistent with such a purpose.  Chemical weapon includes, but is not limited to: nerve agents, choking agents, blood agents, and incapacitating agents.

   "Commissioner" means the Commissioner of Health, or the commissioner's designee.

   "Contagious disease" means an infectious disease that can be transmitted from person to person.

   "Department" means the Department of Health.

   "Health care facility" means any non-federal institution, building or agency, or portion thereof whether public or private for profit or nonprofit that is used, operated or designed to provide health services, medical or dental treatment or nursing, rehabilitative, or preventive care to any person.  Health care facility includes, but is not limited to:  an ambulatory surgical facility, home health agency, hospice, hospital, infirmary, intermediate care facility, dialysis center, long-term care facility, medical assistance facility, mental health center, paid and volunteer emergency medical services, outpatient facility, public health center, rehabilitation facility, residential treatment facility, skilled nursing facility, and adult day care center.  Health care facility also includes, but is not limited to, the following related property when used for or in connection with the foregoing: a laboratory, research facility, pharmacy, laundry facility, health personnel training and lodging facility, patient, guest and health personnel food service facility, and the portion of an office or office building used by persons engaged in health care professions or services.

   "Health care provider" means any person or entity who provides health care services including, but not limited to: a health care facility, bioanalytical laboratory director, perfusionist, physician, physician assistant, pharmacist, dentist, nurse, paramedic, respiratory care practitioner, medical or laboratory technician, and ambulance and emergency medical workers.

   "Infectious disease" means a disease caused by a living organism or other pathogen, including a fungus, bacteria, parasite, protozoan, virus, or prion.  An infectious disease may, or may not, be transmissible from person to person, animal to person, or insect to person.

   "Isolation" means the physical separation and confinement of an individual or groups of individuals who are infected or reasonably believed to be infected, on the basis of signs, symptoms or laboratory analysis, with a contagious or possibly contagious disease from non-isolated individuals, to prevent or limit the transmission of the disease to non-isolated individuals.

   "Local health agency" means a county, regional, municipal, or other governmental agency organized for the purpose of providing health services, administered by a full-time health officer and conducting a public health program pursuant to law.

   "Local Information Network and Communications System Agency" or "LINCS agency" means the lead local public health agency in each county or identified city, as designated and determined by the commissioner pursuant to section 21 of this act, responsible for providing central planning, coordination, and delivery of specialized services within the designated county or city, in partnership with the other local health agencies within that jurisdiction, in order to prepare for and respond to acts of bioterrorism and other forms of terrorism or other public health emergencies or threats, and to discharge the activities as specified under this act.

   "Microorganism" includes, but is not limited to, bacteria, viruses, fungi, rickettsiae, or protozoa.

   "Nuclear or radiological device" means: any nuclear device which is an explosive device designed to cause a nuclear yield; an explosive radiological dispersal device used directly or indirectly to spread radioactive material; or a simple radiological dispersal device which is any act, container or any other device used to release radiological material for use as a weapon.

   "Overlap agent or toxin" means: any microorganism or toxin that poses a risk to both human and animal health and includes:

Anthrax - Bacillus anthracis

Botulism - Clostridium botulinum toxin, Botulinum neurotoxins, Botulinum neurotoxin producing species of Clostridium

Plague - Yersinia pestis

Tularemia - Francisella tularensis

Viral Hemorrhagic Fevers - Ebola, Marburg, Lassa, Machupo

Brucellosis- Brucellosis species

Glanders - Burkholderia mallei

Melioidosis - Burkholderia pseudomallei

Psittacosis - Chlamydophila psittaci

Coccidiodomycosis - Coccidiodes immitis

Q Fever - Coxiella burnetii

Typhus Fever - Rickettsia prowazekii

Viral Encephalitis - VEE (Venezuelan equine encephalitis virus), EEE (Eastern equine encephalitis), WEE (Western equine encephalitis)

Toxins - Ricinus communis, Clostridium perfringens, Staph. Aureus, Staphylococcal enterotoxins, T-2 toxin, Shigatoxin

Nipah - Nipah virus

Hantavirus - Hantavirus

West Nile Fever - West Nile virus

Hendra - Hendra virus

Rift Valley Fever - Rift Valley Fever virus

Highly Pathogenic Avian Influenza

   "Public health emergency" means an occurrence or imminent threat of an occurrence that:

   a.   is caused or is reasonably believed to be caused by any of the following: (1) bioterrorism or an accidental release of one or more biological agents; (2) the appearance of a novel or previously controlled or eradicated biological agent; (3) a natural disaster; (4) a chemical attack or accidental release of toxic chemicals; or (5) a nuclear attack or nuclear accident; and

   b.   poses a high probability of any of the following harms: (1) a large number of deaths, illness, or injury in the affected population; (2) a large number of serious or long-term impairments in the affected population; or (3) exposure to a biological agent or chemical that poses a significant risk of substantial future harm to a large number of people in the affected population.

   "Quarantine" means the physical separation and confinement of an individual or groups of individuals, who are or may have been exposed to a contagious or possibly contagious disease and who do not show signs or symptoms of a contagious disease, from non-quarantined individuals, to prevent or limit the transmission of the disease to non-quarantined individuals.

   "Toxin" means the toxic material of plants, animals, microorganisms, viruses, fungi, or infectious substances, or a recombinant molecule, whatever its origin or method of production, including:

   a.   any poisonous substance or biological product that may be engineered as a result of biotechnology or produced by a living organism; or

   b.   any poisonous isomer or biological product, homolog, or derivative of such a substance.

   L.2005, c.222, s.2; amended 2012, c.17, s.356.

I was wondering what gives the Governor the power to close bars, VFW, Elks club and impose restrictions in Executive Order 103. Here are some of the statutes that were invoked. App.A:9-33 . Purpose of civilian defense act and disaster control act

 I was wondering what gives the Governor the power to close bars, VFW, Elks club and impose restrictions in Executive Order 103. Here are some of the statutes that were invoked. 

App.A:9-33 .  

Purpose of civilian defense act and disaster control act

   The purpose of this act is to provide for the health, safety and welfare of  the people of the State of New Jersey and to aid in the prevention of damage to  and the destruction of property during any emergency as herein defined by  prescribing a course of conduct for the civilian population of this State  during such emergency and by centralizing control of all civilian activities  having to do with such emergency under the Governor and for that purpose to  give to the Governor control over such resources of the State Government and of  each and every political subdivision thereof as may be necessary to cope with  any condition that shall arise out of such emergency and to invest the Governor  with all other power convenient or necessary to effectuate such purpose.

    L.1942, c. 251, p. 680, s. 1.  Amended by L.1949, c. 86, p. 396, s. 2; L.1953, First Sp.Sess., c. 438, p. 2404, s. 2.

Nominations for NJ Municipal Court Practice Award 2020

 Nominations for NJ Municipal Court Practice Award 2020

The New Jersey State Bar Association, Municipal Court Practice Section is soliciting nominations for its annual “Municipal Court Practice Award”. Nominations may be of a New Jersey lawyer, prosecutor, or retired judge, in good standing, who has evidenced: 

1. Public service in advancing the development of Municipal Court Practice in New Jersey in the preceding year or cumulatively as lifetime achievements in the field. 

2. Dedication to the positive development of Municipal Court practice by publishing, teaching, and serving on municipal court practice committees. 

3. Commitment to significant and sustained pro bono representation or pro bono service in order to positively effect the administration of justice in municipal courts 

4. Leadership in Municipal Court practice activities on a state, county and local bar association level. 

   Nominations must be in writing and include both your and nominee’s name, address, phone, fax, and email address, along with detailed reasons in support of the nomination.Nominations are confidential and may be sent by mail, fax, or email, which must be received no latter than 9am on April 17, 2020. The AOC does not permit an active Judge to receive the award.

Albert Mrozik, Esq. mrozika@icloud.comChair

NJSBA Municipal Court Practice Section Past Chair

Kenneth Vercammen, Esq. Kenv@njlaws.com

NJSBA Municipal Court Practice Section Past Chair

Kevin P. McKernankevin@kmckernan.com

ViceChair of Municipal Court Practice Section 

If you have no email:  Kenneth Vercammen, Esq.

2053 Woodbridge Ave.

Edison, NJ 08817

 Fax: 732-572-0030

Removing the Executor of a Probate Estate

Removing the Executor of a Probate Estate 

By Kenneth A. Vercammen, Esq.

      In New Jersey, the court and Surrogate do not supervise how an Executor or Administrator handles the estate. Unfortunately, the 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 you are not satisfied with the Executor’s handling of the estate, you can hire  an attorney file a Complaint and Order to Show Cause in the Superior Court. 

      There is no inexpensive way to remove an Executor in Court. The person who is seeking to to remove an Executor needs to have their attorney file a Complaint, Order to Show Cause, a brief and proposed Order. Copies of the Complaint must be served by Regular and Certified mail on all the beneficiaries in the Will.    

More info at 

http://www.njlaws.com/removing_the_executor_of_an_estate.html

Undue Influence to challenge a Will or Power of Attorney

A grievance based upon undue influence may be sustained by showing that the beneficiary had a confidential relationship with the party who established the account. Accordingly, if the challenger can prove by a preponderance of the evidence that the survivor had a confidential relationship with the donor who established the account, there is a presumption of undue influence, which the surviving donee must rebut by clear and convincing evidence.

[Estate of Ostlund v. Ostlund,391 N.J. Super. 390, 401 (App. Div. 2007).]

Although perhaps difficult to define, the concept encompasses all relationships whether legal, natural or conventional in their origin, in which confidence is naturally inspired, or, in fact, reasonably exists. Pascale v. Pascale,113 N.J. 20, 34 (1988) (internal citation omitted). And while family ties alone may not qualify, parent-child relationships have been found to be among the most typical of confidential relationships. DeFrank ,supra, slip op. at 13 (citing Ostlund, supra, 391N.J. Super.at 401).

In the context of inter vivos gifts, a presumption of undue influence arises when the contestant proves that the donee dominated the will of the donor or when a confidential relationship exists between the donor and done. Pascale, supra, 113N.J.at 30 (internal citations omitted). Where parties enjoy a relationship in which confidence is naturally inspired or reasonably exists, the person who has gained an advantage due to that confidence has the burden of proving that no undue influence was used to gain that advantage, In re Estate of Penna,322 N.J. Super. 417, 423 (App. Div. 1999), and the donee has the burden of showing by clear and convincing evidence not only that no deception was practiced therein, no undue influence used, and that all was fair, open and voluntary, but that it was well understood. In re Estate of Mosery,349 N.J. Super. 515, 522-23 (App. Div. 2002) (citing In re Dodge,50 N.J. 192, 227 (1967)).

The person receiving gifts and greater benefit had a burden to show no deception was practiced and that all of the transactions were fair, open and voluntary, and that they were well understood.

One of the major cases dealing with undue influence was Haynes v. First National State Bank of New Jersey, 87 N.J. 163, 75-76 (1981). Here the Supreme Court held that the burden of proof establishing undue influence shifts to the proponent when a will benefits a person who stood in a confidential relationship to the decedent and there are suspicious circumstances, which need explanation. The suspicious circumstances need only be slight. Id. at 176. Moreover, when the evidence is almost entirely in the possession of one party and the evidence points to the proponent as asserting undue influence, a clear and convincing standard may be applied rather than the normal burden of proof of preponderance of the evidence. Id. at 183.

Furthermore, the Haynes analysis was extended to situations in which there is a transfer of property where the beneficiary of the property and an attorney is on one side and the donor on the other. See Oachs v. Stanton, 280 N.J. Super. 478, 483 (App. Div. 1995).

The court in Oachs determined that under circumstances such as these the donee bears the burden of proof to establish the validity of the gift, even in situations in which the donee did not dominate the decedents will. Id. at 485. This rule was established to protect a donor from making a decision induced by a confidential relationship the donee possesses with the donor. Id. Again, the burden is a clear and convincing standard. Id. 

The Supreme Court in Pascale v. Pascale, 113 N.J. 20, 31 (1998), stated that when a donor makes a gift to a donee that he/she is dependent upon, a presumption arises that the donor did not understand the consequences of his/her act. In these situations the donee must demonstrate that the donor had disinterested and competent counsel. Id. Likewise, undue influence is conclusive, when a mentally or physically weakened donor makes a gift without advice or a means of support, to a donee upon whom he/she depends. Id. 

A confidential relationship can be found to exist when one is certain that the parties dealt on unequal terms. In re Stromings Will, 12 N.J. Super. 217, 224 (1951). The appropriate inquiry is if a confidential relationship existed, did the parties deal on terms and conditions of equality? Blake v. Brennan, 1 N.J. Super. 446, 453 (1948).

Suspicious circumstances are not required to create a presumption of undue influence with regard to inter vivos gifts and the presumption of undue influence is more easily raised in an inter vivos transfer. See Pascale, supra, 113 N.J. at 31; Bronson v. Bronson, 218 N.J. Super. 389, 394 (App. Div. 1987). 

Generally, an adult is presumed to be competent to make an inter vivos gift. See Conners v. Murphy, 100 N.J. Eq. 280, 282 (E. & A. 1926); Pascale v. Pascale, 113 N.J. 20, 29 (1988). However, when a party alleges undue influence with regard to an inter vivos gift, the contesting party must prove undue influence existed or that a presumption of undue influence should arise. Pascale, supra, 113 N.J. at 30.

A presumption of undue influence arises when a confidential relationship exists between the donor and donee or where the contestant proves the donee dominated the Will of the donor. Id.; see also Seylaz v. Bennett, 5 N.J. 168, 172 (1950); In re Dodge, 50 N.J. 192, 227 (1967); Mott v. Mott, 49 N.J. Eq. 192, 198 (Ch. 1891); Oachs v. Stanton, 280 N.J. Super. 478 (App. Div. 1995) (holding that where a confidential relationship existed and that the donor did not rely upon the donee, a shifting of the burden was still appropriate); In re Neumans Estate, 133 N.J. Eq. 532, 534-35 (E. & A. 1943) (stating in a will context Such burden does not shift merely because of the existence of a confidential relationship, without more, as in the matter of gifts inter vivos.)

The In re Dodge court explained why a presumption of undue influence arises in a confidential relationship and stated: In the application of this rule it is not necessary that the donee occupy such a dominant position toward the donor as to create an inference that the donor was unable to assert his will in opposition to that of the donee. In Re Dodge, 50 N.J. 192 (1967). The court referenced a much earlier case in explaining the rules application:

Its purpose is not so much to afford protection to the donor against the consequences of undue influence exercised over him by the donee, as it is to afford him protection against the consequences voluntary action on his part induced by the existence of the relationship between them, the effect of which upon his own interests he may only partially understand or appreciate. In re Dodge, supra, 50 N.J. at 228 citing Slack v. Rees, 66 N.J. Eq. 447, 449 (E. & A. 1904).

In sum, once it is proven that a confidential relationship exists the burden shifts to the donee to show by clear and convincing evidence that no undue influence was used. Although the case law indicates suspicious circumstances need not be shown the donee must show all was fair, open and voluntary, no deception was practiced and that the transaction was well understood. Pascale, supra, 113 N.J. at 31; see also In re Dodge, supra, 50 N.J. at 227; Seylaz, supra, 5 N.J. at 173. Furthermore, confidential relationships arise in all types of relationships whether legal, natural or conventional in their origin, in which confidence is naturally inspired, or, in fact, reasonably exists.In re Fulpers Estate, 99 N.J. Eq. 292, 314 (Prerog. Ct. 1926); see Pascale, supra, 113 N.J. at 34. It appears confidential relationships exist in all cases in which:

The relations between the [contracting] parties appear to be of such a character as to render it certain that they do not deal on terms of equality, but that either on the one side from superior knowledge of the matter derived from a fiduciary relation, or from over-mastering influence; or on the other from weakness, dependence or trust justifiably reposed, unfair advantage is rendered probable. Pascale, supra, 113 N.J. at 34, quoting In re Fulper, supra, 99 N.J. Eq. at 314; see also In re Dodge, supra, 50 N.J. at 228.

In determining whether the Defendant was the dominant person in the relationship there is no clear-cut rule and instead the court must look to the particular circumstances of the matter. In re Fulper, supra, 99 N.J. Eq. at 315; Giacobbi v. Anselmi, 18 N.J. Super. 600, 616 (Ch. Div. 1952). In Fulper the court determined that a confidential relationship existed in a father-son relationship in which the father was advanced in age, weak and physically depended upon the son. Moreover, since the father sought the sons assistance on business matters, lived with the son during the winter months and gave the son joint and several power over his checking account an actual repose of trust and confidence in the son was demonstrated. In re Fulper, supra, 99 N.J. Eq. at 318.

In the Giacobbi case, supra, a confidential relationship was determined to exist between a mother and daughter, even though the mother did not suffer from mental or physical infirmity. There the mother was found to be alert, active, and somewhat independent. However, she turned to the daughter for small issues and problems when they occurred. Giacobbi, supra, 18 N.J. Super. at 617. 

Therefore, the burden can shift to Defendant to prove by clear and convincing evidence the transaction was not unduly influenced. Furthermore, where a donor makes an improvident gift to the donee upon whom she depends that strips the donor of all or virtually all their assets, as here, a presumption arises that the donor did not understand the consequences of their act. Pascale, supra, 113 N.J. at 31, citing Vanderbach v. Vollinger, 1 N.J. 481, 489 (1949). Under those circumstances the donee must establish that the donor had the advice of competent and disinterested counsel. Id. citing Vanderback, supra, 1 N.J .at 488-89.

Similarly, when a mentally or physically weakened donor makes a gift to a donee whom the donor is dependent upon, without advice, and the gift leaves the donee without adequate means of support, a conclusive presumption of undue influence arises. Id. citing Seylaz, supra, 5 N.J. at 173. However, when a donor is not dependent upon the donee independent advice is not a prerequisite to the validity of an improvident gift even though the relationship between the parties is one of trust and confidence. Id. citing Seylaz, supra, 5 N.J. at 173. 

Although suspicious circumstances are not required to be established in an inter vivos transfer for a presumption of undue influence to exist, thereby shifting the burden of proof, Plaintiff has raised the issue. Pascale, supra, 113 N.J. at 30. 

If Undue Influence was Clear, the Will of the Elderly Testatrix is Denied Admission to Probate.

The testatrix’s Will was properly rejected as the product of undue influence because the proponent and the testatrix had a confidential relationship and because there were suspicious circumstances surrounding the execution of the will.

In Re Probate of the Last Will and Testament of Catelli 361 NJ Super. 478 (App. Div. 2003)

In the Catelli case, Thomas R. Villone was named by his elderly aunt, Anna Villone Catelli, as the executor in a will and as the trustee under a living trust, which she executed on January 9, 1996. He appeals from the decision of the Chancery Division which refused to admit that 1996 will to probate, which named his cousin, George Villone, as the Administrator C.T.A. of Catelli’s estate, which ordered him to restore assets to the estate, which awarded counsel fees and which dismissed a related complaint that he had filed in his effort to enforce certain provisions of the 1996 trust.

The decision of the trial court was made following two days of testimony and the consideration by the court of deposition testimony given by witnesses, including Thomas Villone, who could not appear in New Jersey. In that decision, the court first held that, as a matter of public policy, the will could not be admitted to probate because at the time of the execution of the 1996 will, Anna Catelli had become blind and the only person who could verify that the contents of the documents had been read to her so that she knew what she was signing was Thomas, who the disputed documents made her sole heir. As an alternate ground, the judge analyzed the testimony and the evidence in the nature of an application for a directed verdict at the close of the plaintiffs case and determined that Thomas Villone could not prevail on the merits. Because we affirm the decision of the court based upon the alternate ground, we do not address the courts public policy rationale.

Viewed in the light most favorable to Thomas Villone, the record discloses the following facts. The testator, Anna Catelli, was a widow who had no children and who lived alone. She had a number of nieces and nephews, including Thomas Villone and George Villone. She also had a brother, Robert, who died in Florida in 1994. Robert had named Thomas, his nephew, as the executor and principal beneficiary of his estate. Thomas, who was a self- employed long distance truck driver living in Arizona, had not had much contact with Anna Catelli, but telephoned to tell her of her brothers death. In that conversation, Catelli had asked him to come and visit her when he was next in New Jersey and he thereafter did so.

Early in 1994, while Thomas was visiting her at her home, then in Springfield, Catelli asked him to drive her to her lawyers office in Maplewood, which he did. He learned that day that Catelli had named him as her alternate power of attorney in the event that her long-time physician and confidante, Dr. Coppola, was unable to serve. While he was not aware of it at the time, she had gone to the lawyers office that day to execute a will that left her estate to a variety of relatives and friends and to two churches and which included him as one of the residuary beneficiaries. Later that year, Catelli suffered a significant stroke which left her partially paralyzed and with limited powers of speech and sight. She was moved by Dr. Coppola to a nursing home, and thereafter to the Garden Terrace Nursing Home where she remained until her death. Thomas visited her at the nursing home from time to time when he was in New Jersey. Shortly before Thanksgiving 1995, Dr. Coppola telephoned Thomas and told him that Catelli wanted to make him her sole heir. Dr. Coppola died two or three days later.

Following Dr. Coppolas death, Thomas invoked the power of attorney to make $10,000 gifts to himself, his wife and his daughter. He next received from Dr. Coppolas son all of the papers relating to Catelli’s assets. While Thomas then knew that the designation of him as the sole heir was a departure from her earlier will, he did not discuss this apparent change of plans with Catelli. Rather, he immediately consulted an attorney in Arizona who prepared a living trust, which named Thomas as the trustee, and a pour-over will which named Thomas as the executor and sole heir. The Arizona attorney gave the documents to Thomas along with a letter which instructed him to have the documents reviewed by a New Jersey attorney and which suggested that Anna be represented by independent counsel. Thomas then came to New Jersey, arriving on January 6, 1996. While Thomas knew that Catelli had been represented in the past by the lawyer in Maplewood, he did not contact him and did not consult with any other New Jersey lawyer. Instead, he went directly to the nursing home and visited with Catelli.

Over the course of the next three days, while she remained in her bed and dozed on and off, he read the documents to her. Thomas has a high school education and concedes that he would not have been able to explain or interpret any of the language of the trust or the will to Catelli. He was aware that the trust and the will together would enable him to avoid probate, but he did not understand why that might be advantageous. At no time did he suggest that Catelli consult with an attorney or offer to contact her New Jersey lawyer for her. 

After three days, Thomas made arrangements with the administrator of the nursing home to execute the trust and the will. The administrator served as a notary and two nurses observed Catelli place an X on the line Thomas indicated. Shortly after the execution, Thomas gave up his truck driving job, employed himself as the full-time manager of Catelli’s assets and undertook to gain control of Catelli’s interest in Excelsior Realty Ltd. (Excelsior), a family real estate venture, through the trust instrument. Prior to Catelli’s death, Thomas efforts to gain control of her interest in Excelsior consisted of correspondence with his cousin George Villone who was the General Partner of that venture. George Villone refused to acknowledge the validity of the January 9, 1996 trust agreement and refused to turn control of Catelli’s interest in Excelsior over to Thomas. He continued to refuse after Catelli’s death on July 5, 1997. As a result, in March 1999, Thomas instituted litigation, in his capacity as the executor of Catelli’s estate and as her heir, against George Villone and Excelsior to force a transfer of Catelli’s interest to him. That complaint was consolidated with the action filed subsequently by Thomas in the Chancery Division, Probate Part seeking to have the disputed will admitted to probate.

The judge elected to first receive evidence relating to whether the 1996 will should be admitted to probate. At the close of the evidence offered in favor of the admission of the will, the trial court held, first, that Thomas Villone had failed to demonstrate that Catelli knew the contents of the documents that she had signed. Relying on Harris v. Vanderveers Executor, 21 N.J. Eq. 561, 563 (E. & A. 1870), Hildreth v. Marshall, 51 N.J. Eq. 241, 250 (Prerog. Ct. 1893) and Day v. Day, 3 N.J. Eq. 549, 553-55 (Prerog. Ct. 1831), the judge rejected the will. While each of these decisions includes a discussion of the effect of visual impairment on the knowing execution of a will, each of them arose in the context of a dispute based on allegations of undue influence. 

Thus, while each of these precedents rejected a proffered will executed by a testator with a significant visual or other impairment, none requires proof of knowing execution beyond that specified by the statute. N.J.S.A. 3B:3-2; N.J.S.A. 3B:3-4. The judge, however, reasoned that although the will had been executed in accordance with the statutory formalities, public policy demands proof beyond compliance with the formalities of execution if the testator can no longer see. He held that the will was invalid because there was no evidence from anyone other than the sole beneficiary that the will had been read to Catelli and that she knew what she was signing. He therefore created an additional requirement for probate of a will executed by a visually impaired person, citing public policy. We appreciate the trial judges concern that a testatrix with a severe visual impairment is ordinarily unable, without the intervention of a neutral person, to determine if the will as drafted accurately memorializes her testamentary instructions. The same, of course, is true of a testator who cannot read by reason of illiteracy. But whether the statutory provisions for the witnessing and execution of the wills of such testators should be augmented to require that the pre-execution reading of the will to the testator be by a disinterested person is, in our view, a matter within the province of the Legislature. 

The court held We are satisfied, at least in this case, that we need not further consider that issue because, as the judge found, this record speaks so clearly of undue influence. The trial judge addressed the alternate ground of undue influence using the standard of a directed verdict at the close of plaintiffs proofs. R. 4:37-2(b). He found that there was a confidential relationship between the decedent and the beneficiary, that there were suspicious circumstances surrounding the execution, that undue influence was therefore presumed, that the burden to overcome the presumption therefore shifted to Thomas and that the record before the court made it impossible for him to carry that burden. He therefore refused to admit the will to probate, dismissed the complaint against George Villone and Excelsior, admitted Catelli’s 1994 will to probate, appointed George Villone as the Administrator C.T.A., directed Thomas to restore assets to the estate and approved fees and commissions. We agree with the judges alternate analysis of the probate dispute and we affirm on that ground.

Viewed in terms of undue influence, there can be no doubt about the issues before us. The judge identified several factors that supported his analysis of undue influence, including the fact that Thomas retained his own attorney to prepare the documents, that he did so based only on the conversation with Dr. Coppola and without any consultation with Catelli herself, that the documents were markedly different from Catelli’s prior will, that Catelli was very debilitated and vulnerable, that the effect of the documents was an immediate vesting of control of all assets in Thomas through the inter vivos trust document, and that Thomas immediately upon the death of Dr. Coppola left his employment and by means of the power of attorney began to pay himself a commission and dispensed substantial gifts to himself and his immediate family, which bespoke self-dealing even prior to the time of the execution of the disputed documents.

The court held: We concur with the judges analysis of the effect of these facts. First, Catelli was clearly not well. The nursing administrator who saw her daily conceded that, while she had made progress in recovering from her stroke, her level of functioning was seriously diminished. Her short-term memory was significantly impaired. Her vision had deteriorated substantially. She required total care by the staff at the nursing home, needing daily assistance with feeding, bathing, and other basic needs. During the three days prior to the execution of the document, she did not leave her room, but remained in bed, dozing from time to time and barely communicating with anyone. While she was undoubtedly fond of Thomas, who was virtually her only visitor after the death of Dr. Coppola, she was especially vulnerable to his influence.

Moreover, Thomas acted in a manner, which made his intentions clear. Even accepting as true his testimony that he learned from Dr. Coppola that Catelli intended to make him her sole heir, his behavior proves that he acted so as to overbear her will. He made no effort to discuss Catelli’s intentions with her prior to acting for his unilateral benefit. He knew that Catelli had an attorney in New Jersey who had prepared at least one earlier will, but he deprived Catelli of the opportunity to consult with him. He did so in spite of the urging of his personal attorney from Arizona to have the documents reviewed by New Jersey counsel and to give Catelli the benefit of independent legal advice. He knew as well that the 1994 will left significant assets to the two churches and a hospital, left numerous specific bequests to friends and to a few family members, and included him only as one of the residuary beneficiaries. Nonetheless, he made no effort to discuss with Catelli why all were to be rejected in favor of him alone.

Nor did he simply carry out the instruction that he be made her sole heir. Instead, he used his own attorney to secure immediate control of her assets. He knew that Catelli had not previously utilized a trust and he knew from his own lawyer that a living trust with a pour-over will would give him control before Catelli died. In fact as soon as he had the ability to exercise any control through the power of attorney, he gave $30,000 in gifts to himself, his wife and his daughter, an act well in excess of any prior expression of generosity by Catelli and not one she authorized. Shortly thereafter, he embarked on a new career, hiring himself to be the full time manager of her assets, in spite of his lack of any relevant training or experience. Those acts are the behavior not of one with Catelli’s interests at heart, but of one bent on his own enrichment at her expense. 

The law governing undue influence is well established. While we generally presume that the testator is of sound mind and competent to execute a will, Gellert v. Livingston, 5 N.J. 65, 71 (1950), even a will which on its face appears to have been validly executed can be overturned upon a demonstration of undue influence. Haynes v. First Natl State Bank, 87 N.J. 163, 175-76 (1981). Similarly, an inter vivos transfer, as was this trust, is equally governed by the undue influence analysis. In re Dodge, 50 N.J. 192, 227-29 (1967); see Pascale v. Pascale, 113 N.J. 20, 29-31 (1988).

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

The court held: The confidential relationship between Thomas and Catelli is both plain and conceded. See Haynes v. First Natl State Bank, supra, 87 N.J. at 176; In re Estate of Hopper, 9 N.J. 280, 282 (1952). The suspicious circumstances surrounding the will need only be slight to shift the burden of proof to the proponent to overcome them. See In re Estate of Lehner, 70 N.J. 434, 436 (1976); In re Blakes Will, 21 N.J. 50, 55-56 (1956).Once the burden has shifted, the will proponent must overcome that presumption by a preponderance of the evidence. Haynes v. First Natl State Bank, supra, 87 N.J. at 177-78; In re Estate of Weeks, 29 N.J. Super. 533, 538-39 (App. Div. 1954); see In re Estate of Churik, 165 N.J. Super. 1, 5 (App. Div. 1978), affd o.b., 78 N.J. 563 (1979). See also Pascale v. Pascale, supra, 113 N.J. at 31 (holding that donee of inter vivos gift bears burden of proof by clear and convincing evidence). 

The court held The record before us discloses no evidence by which Thomas could meet this burden. On the contrary, the record is overwhelmingly supportive of the finding of undue influence. The combination of the confidential relationship and the suspicious circumstances was more than sufficient to shift the burden to Thomas. The absence of any evidence tending to negate the presumption and the abundant evidence of self-dealing by Thomas support the conclusion that the testators will was overborne. The trial judge, having heard and considered the evidence, appropriately found that the burden that had shifted to Thomas was one that he was unable to carry. Affirmed.

COMPLAINT FOR ACTION

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

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

As with a litigated court matter, trials can become expensive. Competent elder law/probate attorney may charge an hourly rate of $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 an upfront consult fee of $200 to discuss the case.

The plaintiff can demand the following:

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

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

(3) Reimbursement of plaintiff's attorney's fees and costs of suit  

(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 someone else 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.

7. That the executor not be permitted a commission and be surcharged for waste of estate assets

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.

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 the principal of the estate, and the income earned by assets.

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

      The New Probate Statute of NJ revised various sections of the New Jersey law on Wills and estates. law makes a number of substantial changes to the provisions governing the administration of estates and trusts in New.

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.

      Obtain Court Approval or all beneficiaries sign Release and Refunding Bonds, then 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.

        

      

NJ Court RULE 4:87. Actions For The Settlement Of Accounts

4:87-1. Procedure

     (a)Actions to settle the accounts of executors, administrators, testamentary trustees, non-testamentary trustees, guardians and assignees for the benefit of creditors shall be brought in the county where such fiduciaries received their appointment. The action shall be commenced by the filing of a complaint in the Superior Court, Chancery Division, and upon issuance of an order to show cause pursuant to R. 4:83. A non-testamentary trustee shall annex to the complaint a copy of the written instrument creating the trust and stating its terms. The order to show cause shall state the amount of commissions and attorney's fee, if any, which are applied for.

     (b)An action may be commenced by an interested person to compel a fiduciary referred to in paragraph (a) of this rule to settle his or her account, and, in appropriate circumstances, to file an inventory and appraisement.

NJ Court 4:87-2. Complaint

The complaint in an action for the settlement of an account

     (a)shall contain the names and addresses of all persons interested in the account, including any surety on the bond of the fiduciary, specifying which of them, if any, are minors or mentally incapacitated persons, the names and addresses of their guardians, or if there is no guardian then the names and addresses of the parents or persons standing in loco parentis to the minors;

     (b)shall specify the period of time covered by the account and contain a summary of the account. The summary shall state, all as shown by the account: (1) in the case of a first accounting, the amount for which the accountant was chargeable as of the date the trust or obligation devolved upon him or her, or where an inventory is on file, the amount of the inventory; or in the case of a second or later accounting, the balance remaining in the hands of the accountant as shown in the last previous account; (2) the amount for which the accountant became chargeable in addition thereto; (3) the total of the first two items; (4) the amount of the allowances claimed in the account; and (5) the balance in the accountant's hands. Charges and allowances sought on account of corpus and income shall be stated separately both in the summary and in the account;

     (c)shall have annexed thereto the account which shall be dated;

     (d)shall ask for the allowance of the account, and also for the allowance of commissions and a fee for the accountant's attorney, if accountant intends to apply therefor; and

       (e)shall be filed at least 20 days prior to the day on which the account is to be settled.

CONCLUSION

As 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 elder law attorney.

Kenneth A. Vercammen is a Middlesex County, NJ trial attorney who has published 125 articles in national and New Jersey publications on Probate and litigation topics. He often lectures to trial lawyers of the American Bar Association, New Jersey State Bar Association and Middlesex County Bar Association. He is Chair of the American Bar Association Estate Planning & Probate Committee. He is also Editor of the ABA Elder Law Committee Newsletter

He is a highly regarded lecturer on litigation issues for the American Bar Association, ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published by New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer. He is the Editor in Chief of the New Jersey Municipal Court Law Review. Mr. Vercammen is a recipient of the NJSBA- YLD Service to the Bar Award.

In his private practice, he has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey several times each week on many litigation matters, Municipal Court trials, and contested Probate hearings.

KENNETH VERCAMMEN

Attorney at Law

2053 Woodbridge Ave.

Edison, NJ 08817

732-572-0500

www.centraljerseyelderlaw.com