Same-Sex Couples Estate Planning

By Kenneth A. Vercammen

Average Americans work 80,000 hours in a lifetime, or 45 to 55 years. In spite of all the resources and assets people earn, the vast majority of same- sex couples do not take the time to create a Will. National statistics indicate that 80% of Americans die without leaving a Will. There are several reasons for this: fear of death; procrastination; and misinformation (people presume that only the rich or married with children need to have Wills). Whatever the excuse, it is clear that people would benefit from having a Will.

In the absence of a Will or other legal arrangement to distribute property at death, your partner cannot receive any assets and cannot administer your estate. The result can be lengthy delays and other problems. Individuals in gay or lesbian relationships need properly drafted Wills and estate planning documents more than straight persons. The probate laws generally provide if a person dies without a Will, their property goes to family, rather than a partner they had a relationship with for years or decades.

IF YOU HAVE NO WILL: If you leave no Will or your Will is declared invalid because it was improperly prepared or is not admissible to probate: * State law determines who gets assets, not you * Additional expenses will be incurred and extra work will be required to qualify an administrator * Mandatory bond * Possible additional State inheritance taxes and Federal estate taxes * If you have no spouse or close relatives the State may take your property * The procedure to distribute assets becomes more complicated-and the law makes no exceptions for persons in unusual need or for your own wishes. * It may also cause fights and lawsuits between your partner and your family * When your loved ones are grieving and dealing with death, they shouldn't be overwhelmed with disputes over property and Financial concerns. Careful estate planning helps take care of that.

THE FOLLOWING IS A SAMPLE OF A VARIETY OF CLAUSES AND ITEMS WHICH SHOULD BE INCLUDED IN A WILL FOR UNMARRIED PERSON:

1ST: DEBTS AND TAXES 2ND: SPECIFIC BEQUESTS TO PARTNER, CHARITY, ETC. 3RD: DISPOSITION TO PARTNER 4TH: DISPOSITION OF REMAINDER OF ESTATE IF PARTNER IS PREDECEASED 5TH: CREATION OF TRUSTS FOR PARTNER 6TH: DISTRIBUTION TO CHILDREN OR TRUST FOR CHILDREN 7TH: OTHER BENEFICIARIES UNDER 21 8TH: EXECUTORS 9TH: TRUSTEES 10TH: GUARDIANS OF CHILDREN 11TH: NO SURETY OR BOND REQUIRED 12TH: POWERS 13TH: SELF PROVING WILL 14TH: PRINCIPAL AND INCOME 15TH: NO ASSIGNMENT OF BEQUESTS 16TH: GENDER 17TH: CONSTRUCTION OF WILL 18TH: NO CONTEST CLAUSE A Will must not only be prepared within the legal requirements of the New Jersey Statutes but should also be prepared so it leaves no questions regarding your intentions.

WHY PERIODIC REVIEW IS ESSENTIAL Even if you have an existing Will, there are many events that occur which may necessitate changes in your Will. Some of these are: * Domestic Partnership, Marriage, death, birth, divorce or separation affecting people named in your Will * Significant changes in the value of your total assets or in any particular assets which you own * Changes in your relationships * A change in your State domicile * Death or incapacity of a beneficiary, or death, incapacity or change in residence of a named executor, or of one of the witnesses to the execution of the Will if the Will is not self- proving * Annual changes in tax law MAY I CHANGE MY WILL? Yes. A Will may be modified, added to, or entirely changed at any time before your death provided you are mentally and physically competent and desire to change your Will. You should consider revising your Will whenever there are changes in the size of your estate. Beware, if you draw lines through items, erase or write over, or add notations to the original Will, it can be destroyed as a legal document. Either a new Will should be legally prepared or a codicil signed to legally change portions of the Will.

SAVE MONEY Probate in New Jersey is not difficult. Your estate will be subject to probate whether or not you have a Will and in most cases, a Will reduces the cost by eliminating the requirements of a bond. When you meet with your attorney to draft a Will, you may also learn ideas to reduce death taxes and other expenses. Don't pinch pennies now to the detriment of your Partner and beneficiaries. We have attempted to briefly explain in this article some of the issues, techniques, and decisions involved in Wills, Estate Planning, and Administration of an Estate. Because the matters covered are complicated and the Federal and New Jersey laws frequently change, this article can only outline some of the many legal issues you should consider.

The cost of a Will depends on the size and the complexity of the estate and the plans of the person who makes the Will.

A properly drawn Simple Will without Trust costs approximately $200.00 to $500.00. It is one of the most important documents you will ever sign, and may be one of the best bargains you will ever have. Also, ascertain if your Will is self-proving, which would dispense with having to find the Will's witnesses after death.

WHAT IS A WILL? A Will is a Legal written document which, after your death, directs how your individually owned property will be distributed, who will be in charge of your property until it is distributed. You should remember that the term property under the law includes "real estate as well as other possessions and rights to receive money or items of value. Everyone who has at least $3,000 in assets should have a Will. You do not have to be wealthy, married, or near death to do some serious thinking about your Will.

ADMINISTRATION OF AN ESTATE If you are named the executor or executrix, you must visit the County Surrogate to probate the Will. You will need the following items: 1. The Death Certificate 2. The Original Will 3. Names and Addresses of decedents next of kin and will beneficiaries 4. Minimum of $90.00 for Surrogate fees

A state inheritance tax return must be filed and the tax paid on the transfer of real or personal property within eight months after death. OTHER ITEMS OF CONCERN TO BE PREPARED BY YOUR ATTORNEY -Power of Attorney- to allow your partner or another person to administer your assets during your lifetime, either upon disability or now -Living Wills/ Advance Directive- to state your wishes concerning medical care in the event of your serious illness and to allow your partner or another person to make medical decisions.

In the absence of a Power of Attorney or other legal arrangement to distribute property if you become disabled, your partner cannot pay your bills or access your assets. The result can be lengthy delays.

Reasons to have a Power of Attorney What are these powers of attorney?

A Power of Attorney is a written document in which a competent adult individual (the "principal") appoints another competent adult individual (the "attorney-in-fact") to act on the principals behalf. In general, an attorney-in-fact may perform any legal function or task which the principal has a legal right to do for him/her self. You may wish to sign a Power of Attorney giving your partner the power to handle your affairs if you become ill or disabled.

The term "durable" in reference to a power of attorney means that the power remains in force for the lifetime of the principal, even if he/she becomes mentally incapacitated. A principal may cancel a power of attorney at any time for any reason. Powers granted on a power of attorney document can be very broad or very narrow in accordance with the needs of the principal.

Why is Power of Attorney so important? Every adult has day-to-day affairs to manage, such as paying the bills. Many people are under the impression that, in the event of catastrophic illness or injury, a live-in partner, or child can automatically act for them. Unfortunately, this is often wrong, even when joint ownership situations exist. Even under the "new" NJ Domestic Partner Act, you cannot act on behalf of a partner if they become disabled. A Power of Attorney allows your partner or another person to administer your assets during your lifetime, either upon disability or now.

The lack of properly prepared and executed power of attorney can cause extreme difficulties when an individual is stricken with severe illness or injury rendering him/her unable to make decisions or manage financial and medical affairs. New Jersey has a detailed, expensive legal procedures, called Guardianships or conservatorships, to provide for appointment of a Guardian. These normally require lengthy, formal proceedings and are expensive in court. This means involvement of lawyers to prepare and file the necessary papers and doctors to provide medical testimony regarding the mental incapacity of the subject of the action. The procedures also require the involvement of a temporary guardian to investigate, even intercede, in surrogate proceedings. This can be slow, costly, and very frustrating. In addition, the domestic partner can be challenged in a guardianship by the incapacitated persons family members. Advance preparation of the Power of Attorney could avoid the inconvenience and expense of guardianship proceedings. This needs to be done while the principal is competent, alert and aware of the consequences of his / her decision. Once a serious problem occurs, it is usually too late. The Power of Attorney can be effective immediately upon signing or only upon disability. Some examples of legal powers contained in the Power of Attorney are the following: 1. REAL ESTATE: To execute all contracts, deeds, bonds, mortgages, notes, checks, drafts, money orders, and to lease, collect rents, grant, bargain, sell, or borrow and mortgage, and to manage, compromise, settle, and adjust all matters pertaining to real estate.

2. ENDORSEMENT OF NOTES, ETC.: To make, execute, endorse, accept, and deliver any and all bills of exchange, checks, drafts, notes and trade acceptances.

3. PAYMENT OF NOTES, ETC.: To pay all sums of money, at any time, or times, that may hereafter be owing by me upon any bill of exchange, check, draft, note, or trade acceptance, made, executed, endorsed, accepted, and delivered by me, or for me, and in my name, by my Agent.

4. STOCKS, BONDS, AND SECURITIES: To sell any and all shares of stocks, bonds, or other securities now or hereafter, belonging to me, that may be issued by an association, trust, or corporation whether private or public, and to make, execute, and deliver any assignment, or assignments, of any such shares of stock, bonds, or other securities.

5. CONTRACTS, AGREEMENTS, ETC.: To enter into safe deposit boxes, and to make, sign, execute, and deliver, acknowledge, and perform any contract, agreement, writing, or thing that may, in the opinion of my Agent, be necessary or proper to be entered into, made or signed, sealed, executed, delivered, acknowledged or performed.

6. BANK ACCOUNTS, CERTIFICATES OF DEPOSIT, MONEY MARKET ACCOUNTS, ETC.: To add to or withdraw any amounts from any of my bank accounts, Certificates of Deposit, Money Market Accounts, etc. on my behalf or for my benefit. To make, execute, endorse, accept and deliver any and all checks and drafts, deposit and withdraw funds, acquire and redeem certificates of deposit, in banks, savings and loan associations and other institutions, execute or release such deeds of trust or other security agreements as may be necessary or proper in the exercise of the rights and powers herein granted; Without in any way being limited by or limiting the foregoing, to conduct banking transactions.

7. TAX RETURNS, INSURANCE AND OTHER DOCUMENTS: To sign all Federal, State, and municipal tax returns, insurance forms and any other documents and to represent me in all matters concerning the foregoing.

You should contact your attorney to have a Power of Attorney Prepared, together with a Will, Living Will and other vital Estate Planning documents.

Same sex couples- Living Will/ Advance Directives Planning Ahead For Your Health Care:

Compiled by Kenneth Vercammen

In the absence of a Living Will or other legal arrangement if you become disabled, your partner generally has no say regarding medical care or life support. Under the Federal HIPAA Law, your partner cannot receive information on your medical status or medical care. Advance directives are very personal documents and you should feel free to develop one which best suits your own needs. All States have declared that competent adults have the fundamental right in collaboration with their health care providers, to control decisions about their own health care. States recognize in their law and public policy, the personal right of the individual patient to make voluntary, informed choices to accept, to reject or to choose among alternative courses of medical and surgical treatment. If you have a Living Will, you can designate your partner as a decision maker.

WHY LIVING WILLS Modern advances in science and medicine have made possible the prolongation of the lives of many seriously ill individuals, without always offering realistic prospects for improvement or cure. For some individuals the possibility of extended life is experienced as meaningful and of benefit. For others, artificial prolongation of life may seem to provide nothing medically necessary or beneficial, serving only to extend suffering and prolong the dying process. States recognize the inherent dignity and value of human life and within this context recognize the fundamental right of individuals to make health care decisions to have life-prolonging medical or surgical means or procedures provided, withheld, or withdrawn. States recognize the right of competent adults to plan ahead for health care decisions through the execution of advance directives, such as Living Wills and durable powers of attorney, and to have their wishes respected, subject to certain limitations.

PURPOSE OF LIVING WILLS In order to assure respect for patients previously expressed wishes when the capacity to participate actively in decision making has been lost or impaired; to facilitate and encourage a sound decision making process in which patients, health care representatives, families, physicians, and other health care professionals are active participants; to properly consider patients interests both in self-determination and in well-being; and to provide necessary and appropriate safeguards concerning the termination of life-sustaining treatment for incompetent patients as the law and public policy of this State, the Legislatures have enacted Living Will/ Advance Directives for Health Care Acts.

REQUIREMENTS OF STATUTE The advance directive for health care (Living Will) requires a writing executed in accordance with the requirements of the state law. It must be either signed and dated in front of an attorney at law or other person authorized to administer oaths, or in the presence of two subscribing adult witnesses. If the two adult witnesses are used, they both must attest that the declarant is of sound mind and not under undue influence. A designated health care representative shall not act as a witness to the execution of the advance directive. Since this is a legal document, it must be executed properly to be valid under the statute.

HEALTH CARE REPRESENTATIVE The declarant must designate one or more alternative health care representatives. "Health care representative" means the person designated by you under the Living Will for the purpose of making health care decisions on your behalf.

WHEN DOES THE ADVANCE DIRECTIVE BECOME OPERATIVE An advance directive becomes operative when (1) it is transmitted to the attending physician or to the health care institution, and (2) it is determined pursuant to the Act that the patient lacks capacity to make a particular health care decision. Treatment decisions pursuant to an advance directive shall not be made and implemented until there has been a reasonable opportunity to establish and where appropriate confirm, a reliable diagnosis for the patient which shall include the attending physicians opinion concerning the nature, cause, extent, and probable duration of the patients incapacity, and shall be made a part of the patients medical records. For additional information or to have a "Living Will" prepared, see your attorney. In addition, be certain your Last Will and testament is up to date.

As Americans, we take it for granted that we are entitled to make decisions about our own health care. Most of the time we make these decisions after talking with our own physician about the advantages and disadvantages of various treatment options. The right of a competent individual to accept or refuse medical treatment is a fundamental right now fully protected by law.

But what happens if serious illness, injury or permanent loss of mental capacity makes us incapable of talking to a doctor and deciding what medical treatments we do or do not want? These situations pose difficult questions to all of us as patients, family members, friends and health care professionals. Who makes these decisions if we cant make them for ourselves? If we cant make our preferences known how can we make sure that our wishes will be respected? If disagreements arise among those caring for us about different treatment alternatives how will they be resolved? Is there a way to alleviate the burdens shouldered by family members and loved ones when critical medical decisions must be made?

Living Will: By using documents known as advance directives for health care, you can answer some of these questions and give yourself the security of knowing that you can continue to have a say in your own treatment. A properly prepared Living Will permits you to plan ahead so you can both make your wishes known, and select someone who will see to it that your wishes are followed.

After all, if you are seriously ill or injured and cant make decisions for yourself someone will have to decide about your medical care. Doesnt it make sense to

Have your partner or another person you trust make decisions for you,

Provide instructions about the treatment you do and do not want, or

Both appoint a person to make decisions and provide them with instructions.

_____ Rights and Obligations of Domestic Partners Procedural Requirements:

Establish Eligibility

A domestic partnership shall be established when all of the following requirements are met:

1. Both persons have a common residence within the State of New Jersey, or have a common residence in another jurisdiction and at least one of the persons is a member of a New Jersey State-administered retirement system, and both persons are otherwise jointly responsible for each others common welfare as evidenced by joint financial arrangements or joint ownership of real or personal property, which shall be demonstrated by at least one of the following:

a. a joint deed, mortgage agreement or lease; b. a joint bank account; c. designation of one of the persons as a primary beneficiary in the other persons will; d. designation of one of the persons as a primary beneficiary in the other persons life insurance policy or retirement plan; or e. joint ownership of a motor vehicle;

2. Both persons agree to be jointly responsible for each others basic living expenses during the domestic partnership;

3. Neither person is in a marriage recognized by New Jersey law or a member of another domestic partnership;

4. Neither person is related to the other by blood or affinity up to and including the fourth degree of consanguinity;

5. Both persons are of the same sex and therefore unable to enter into a marriage with each other that is recognized by New Jersey law, except that two persons who are each 62 years of age or older and not of the same sex may establish a domestic partnership if they meet the requirements of this section.

6. Both persons have chosen to share each others lives in a committed relationship of mutual caring;

7. Both persons are at least 18 years of age;

8. Both persons file jointly an Affidavit of Domestic Partnership; and

Neither person has been a partner in a domestic partnership that was terminated less than 180 days prior to filing of the current Affidavit of Domestic Partnership, except that this prohibition shall not apply if one of the partners died; and, in all cases in which a person registered a prior domestic partnership, the domestic partnership shall have been terminated in accordance with the provisions shown below under terminating a Domestic Partnership.

About Kenneth Vercammen Kenneth Vercammen is a Litigation Attorney in Edison, NJ, approximately 17 miles north of Princeton. He often lectures for the New Jersey State Bar Association on Probate, personal injury, criminal / municipal court law and drunk driving. He has published 125 articles in national and New Jersey publications on municipal court and litigation topics. He has served as a Special Acting Prosecutor in seven different cities and towns in New Jersey and also successfully defended hundreds of individuals facing Municipal Court and Criminal Court charges. 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 personal injury matters, Municipal Court trials, arbitration hearings and contested administrative law hearings. Since 1985, his primary concentration has been on litigation matters. Mr. Vercammen gained other legal experiences as the Confidential Law Clerk to the Court of Appeals of Maryland (Supreme Court), with the Delaware County, PA District Attorney Office handling Probable Cause Hearings, Middlesex County Probation Dept. as a Probation Officer, and an Executive Assistant to Scranton District Magistrate Thomas Hart in Scranton, PA.

http://www.njlaws.com/same-sexcouplesestateplanning.html?id=816&a=

Will/Trust Inheritance Contests in NJ

Will/Trust Inheritance Contests

If you have evidence a Will was not prepared properly, the signer was incompetent, there was undue influence, you may be able to prevent the filing of the Will in probate if you immediately hire an attorney to file a Caveat to the Will.

Ken Vercammens office charges a $200 consult fee either in person or over the phone.

Will/Trust Inheritance Contests

If you have evidence a Will was not prepared properly, the signer was incompetent, there was undue influence, you may be able to prevent the filing of the Will in probate if you immediately hire an attorney to file a Caveat to the Will. Is a formal notice by someone to prevent the proving of a Will or the grant of administration of an Estate. The following is one of the NJ Court Rules dealing with a Caveat to Will

RULE 4:82. MATTERS IN WHICH THE SURROGATES COURT MAY NOT ACT

Unless specifically authorized by order or judgment of the Superior Court, and then only in accordance with such order or judgment, the Surrogates Court shall not act in any matter in which

(1) a caveat has been filed with it before the entry of its judgment;

(2) a doubt arises on the face of a will or a will has been lost or destroyed;

(3) the application is to admit to probate a writing intended as a will as defined by N.J.S.A. 3B:3-2(b) or N.J.S.A. 3B:3-3;

(4) the application is to appoint an administrator pendente lite or other limited administrator;

(5) a dispute arises before the Surrogates Court as to any matter; or

(6) the Surrogate certifies the case to be of doubt or difficulty.

If there is no dispute on the validity of the Will, sometimes the Executor does not do their job and you want to have the Executor removed and replaced.

Under New Jersey Law, the person selected as an executor of a Will have numerous legal responsibilities following the death of the person who signed the Will. Primarily, they have a duty to probate the Will, liquidate assets, pay bills and taxes, file all necessary court and tax returns, and then distribute the assets to beneficiaries

Unfortunately, the Executor occasionally fails to timely carry out their duties. They may fail to timely file tax returns, fail to keep records, misappropriate assets or ignore instructions under the Will.

In this case the Executor __ has failed to comply with the Duties of Executor in Probate & Estate Administration to:

1. Conduct a thorough search of the decedents personal papers and effects for any evidence which might point them in the direction of a potential asset, namely mineral rights;

2. Keep records of expenses

3. Timely Sell real estate

4 Timely File required inheritance tax returns and provide a copy to Kim

It is unclear if the executor timely preformed the below duties:

Apply to Federal Tax ID #

Set up Estate Account at bank (pay all bills from estate account)

Pay Bills

Notice of Probate to Beneficiaries

File notice of Probate with Surrogate

File first Federal and State Income Tax

Prepare Inheritance Tax Return and obtain Tax Waivers

File waivers within 8 months upon receipt

Prepares a accurate Informal Accounting

In General. The executors job is to (1) administer the estate--i.e., collect and manage assets, file tax returns and pay taxes and debts--and (2) distribute any assets or make any distributions of bequests, whether personal or charitable in nature, as the deceased directed (under the provisions of the Will

Do you think youre entitled to money or might be entitled to money from an estate or trust? Do you believe that someone is unfairly claiming money or property that is rightfully yours? If so, and you are a prospective plaintiff or defendant, then you may need an attorney to protect your rights.

These areas are extremely complex, and you should not attempt to reach a decision on whether or not to take action (and, if so what action to take) without the assistance of counsel.

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 (citingOstlund,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) (citingIn 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 testatrixs 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 Catellis 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 Catellis 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 Catellis assets and undertook to gain control of Catellis interest in Excelsior Realty Ltd. (Excelsior), a family real estate venture, through the trust instrument. Prior to Catellis 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 Catellis interest in Excelsior over to Thomas. He continued to refuse after Catellis death on July 5, 1997. As a result, in March 1999, Thomas instituted litigation, in his capacity as the executor of Catellis estate and as her heir, against George Villone and Excelsior to force a transfer of Catellis 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 Catellis 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 Catellis 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 Catellis 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 Catellis 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.

RULE 4:82. MATTERS IN WHICH THE SURROGATES COURT MAY NOT ACT

Unless specifically authorized by order or judgment of the Superior Court, and then only in accordance with such order or judgment, the Surrogates Court shall not act in any matter in which

(1) a caveat has been filed with it before the entry of its judgment;

(2) a doubt arises on the face of a will or a will has been lost or destroyed;

(3) the application is to admit to probate a writing intended as a will as defined by N.J.S.A. 3B:3-2(b) or N.J.S.A. 3B:3-3;

(4) the application is to appoint an administrator pendente lite or other limited administrator;

(5) a dispute arises before the Surrogates Court as to any matter; or

(6) the Surrogate certifies the case to be of doubt or difficulty.

If there is no dispute on the validity of the Will, sometimes the Executor does not do their job and you want to have the Executor removed and replaced.

Under New Jersey Law, the person selected as an executor of a Will have numerous legal responsibilities following the death of the person who signed the Will. Primarily, they have a duty to probate the Will, liquidate assets, pay bills and taxes, file all necessary court and tax returns, and then distribute the assets to beneficiaries

Unfortunately, the Executor occasionally fails to timely carry out their duties. They may fail to timely file tax returns, fail to keep records, misappropriate assets or ignore instructions under the Will.

In this case the Executor Mary Kampa has failed to comply with the Duties of Executor in Probate & Estate Administration to:

1. Conduct a thorough search of the decedents personal papers and effects for any evidence which might point them in the direction of a potential asset, namely mineral rights;

2. Keep records of expenses

3. Timely Sell real estate

4 Timely File required inheritance tax returns and provide a copy to Kim Rennie

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. It is unclear if the executor has fulfilled the responsibility to diligently search for any readily ascertainable creditors.

It is unclear if the executor timely preformed the below duties:

Apply to Federal Tax ID #

Set up Estate Account at bank (pay all bills from estate account)

Pay Bills

Notice of Probate to Beneficiaries

File notice of Probate with Surrogate

File first Federal and State Income Tax

Prepare Inheritance Tax Return and obtain Tax Waivers

File waivers within 8 months upon receipt

Prepares a accurate Informal Accounting

In General. The executors job is to (1) administer the estate--i.e., collect and manage assets, file tax returns and pay taxes and debts--and (2) distribute any assets or make any distributions of bequests, whether personal or charitable in nature, as the deceased directed (under the provisions of the Will

Do you think youre entitled to money or might be entitled to money from an estate or trust? Do you believe that someone is unfairly claiming money or property that is rightfully yours? If so, and you are a prospective plaintiff or defendant, then you may need an attorney to protect your rights.

These areas are extremely complex, and you should not attempt to reach a decision on whether or not to take action (and, if so what action to take) without the assistance of counsel.

We do not handle cases on contingency.

Our Hourly rate is $350/ hr and minimum retainer is $7,000.

http://www.njlaws.com/will-contests.html?id=1091&a=

NJ Court Rule 3:7 Indictment and Accusation, NJ Court Rule 3:7-1 Entitling of Papers

Kenneth Vercammen's Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey.

The indictment and all subsequent papers in connection therewith shall be entitled in the Superior Court.

Note: Source-R.R. 3:4-1(b). 3:7-2. Use of Indictment or Accusation

A crime punishable by death shall be prosecuted by indictment. Every other crime shall be prosecuted by indictment unless the defendant, after having been advised of the right to indictment, shall waive the right in a signed writing, in which case the defendant may be tried on accusation. Such accusation shall be prepared by the prosecuting attorney and entitled and proceeded upon in the Superior Court. Nothing herein contained, however, shall be construed as limiting the criminal jurisdiction of a municipal court over indictable offenses provided by law and these rules.

Note: Source-R.R. 3:4-2(a)(b). Amended August 28, 1979 to be effective September 1, 1979; amended July 13, 1994 to be effective September 1, 1994. 3:7-3. Nature and Contents of Indictment or Accusation

(a) Nature and Contents Generally. The indictment or accusation shall be a written statement of the essential facts constituting the crime charged, need not contain a formal commencement and shall be signed by the prosecuting attorney. The indictment shall be endorsed as a true bill by the foreperson and conclude: "against the peace of this State, the government and dignity of the same." Allegations made in one count of the indictment or accusation may be incorporated by reference in another count. It may be alleged in a single count either that the means by which the defendant committed the offense are unknown or that the defendant committed it by one or more specified means. An indictment or accusation or any count thereof charging the violation of a statute or statutes shall state the official or customary citation thereof, but error in the citation or its omission shall not be ground for dismissal of the indictment or accusation or for reversal of a conviction if the error or omission did not prejudicially mislead the defendant. Surplusage in the indictment or accusation may be stricken by the court on defendant's motion. (b) Indictment for Murder or Manslaughter. Every indictment for murder shall specify whether the act is murder as defined by N.J.S.A. 2C:11-3(a)(1), (2) or (3) and whether the defendant is alleged: (1) to have committed the act by his or her own conduct or (2) to have procured the commission of the offense by payment or promise of payment, of anything of pecuniary value or (3) to be the leader of a drug trafficking network, as defined in N.J.S.A.2C:35-3, and who, in furtherance of a conspiracy enumerated in N.J.S.A. 2C:35-3, commanded or by threat or promise solicited the commission of the offense. In every indictment for aggravated manslaughter or manslaughter, it is sufficient to charge that the defendant committed aggravated manslaughter or manslaughter contrary to N.J.S.A. 2C:11-4.

Note: Source-R.R. 3:4-3(a)(b)(c), 3:4-4. Paragraphs (a) and (b) amended August 28, 1979 to be effective September 1, 1979; paragraph (b) amended September 28, 1982 to be effective immediately; paragraph (b) amended July 13, 1993 to be effective immediately; paragraphs (a) and (b) amended July 13, 1994 to be effective September 1, 1994. 3:7-4. Amendment of Indictment or Accusation

The court may amend the indictment or accusation to correct an error in form or the description of the crime intended to be charged or to charge a lesser included offense provided that the amendment does not charge another or different offense from that alleged and the defendant will not be prejudiced thereby in his or her defense on the merits. Such amendment may be made on such terms as to postponing the trial, to be had before the same or another jury, as the interest of justice requires.

Note: Source-R.R. 3:4-5. Amended August 28, 1979 to be effective September 1, 1979; amended July 13, 1994 to be effective September 1, 1994. 3:7-5. Bill of Particulars

A bill of particulars shall be ordered by the court if the indictment or accusation is not sufficiently specific to enable the defendant to prepare a defense. The defendant shall move therefore pursuant to Rule 3:10-2. The application shall point out clearly the particulars sought by the defense. The prosecutor shall furnish the bill of particulars within 10 days after the order of the court. Further particulars may be ordered when a demand therefor is promptly made. A bill of particulars may be amended at any time, subject to such conditions as the interest of justice requires. Any particulars that have been furnished to the defendant pursuant to R. 3:13-3 and 4 shall not be subject to an application pursuant to this rule.

Note: Source-R.R. 3:4-6; amended June 29, 1990, to be effective September 4, 1990; amended July 13, 1994 and December 9, 1994, to be effective January 1, 1995. 3:7-6. Joinder of Offenses

Two or more offenses may be charged in the same indictment or accusation in a separate count for each offense if the offenses charged are of the same or similar character or are based on the same act or transaction or on 2 or more acts or transactions connected together or constituting parts of a common scheme or plan. Relief from prejudicial joinder shall be afforded as providedby R. 3:15-2.

Note: Source-R.R. 3:4-7; amended August 28, 1979 to be effective September 1, 1979. 3:7-7. Joinder of Defendants

Two or more defendants may be charged in the same indictment or accusation if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count. The disposition of the indictment or accusation as to one or more of several defendants joined in the same indictment or accusation shall not affect the right of the State to proceed against the other defendants. Relief from prejudicial joinder shall be afforded as provided by R. 3:15-2.

Note: Source-R.R. 3:4-8. 3:7-8. Issuance of Warrant or Summons Upon Indictment or Accusation

Upon the return of an indictment or the filing of an accusation a summons or warrant shall be issued in accordance with R. 3:3-1 by the criminal division manager as designee of the deputy clerk of the Superior Court in the manner provided by law for each defendant named in the indictment or accusation who is not under bail. The criminal division manager as designee of the deputy clerk of the Superior Court, upon request, shall issue more than one warrant or summons for the same defendant. If the defendant fails to appear in response to a summons, a warrant shall issue. If a summons is issued upon indictment to a defendant who has not been previously held to answer a complaint, the defendant shall undergo all post-arrest identification procedures that are required by law upon arrest, on the return date of the summons, or upon written request of the appropriate law enforcement agency.

Note: Source-R.R. 3:4-9. Amended July 22, 1983 to be effective September 12, 1983; amended July 13, 1994 to be effective January 1, 1995. 3:7-9. Form of Warrant and Summons

The warrant shall contain the name of the defendant or, if the defendant's name is unknown, any name or description by which the defendant can be identified with reasonable certainty, shall describe the offense charged in the indictment or accusation and shall command that the defendant be arrested and brought before the court. Conditions of pretrial release shall be fixed by the court and endorsed thereon, and in such case the sheriff or warden may take any bail. The summons shall be in the same form as the warrant except that it shall be directed to thedefendant and require the defendant to appear to plead before the court at a stated time and place. The summons shall also state that if the defendant fails to so appear, a warrant for defendant's arrest shall issue.

Note: Source-R.R. 3:4-10(a)(b); amended July 13, 1994 to be effective January 1, 1995. 3:7-10. Execution of Service; Return

(a) Execution of Warrant. The warrant shall be executed in accordance with R. 3:3-3. (b) Summons to an Individual. The summons shall be served upon an individual in accordance with R. 4:4-4. (c) Summons to a Corporation. Service of a summons upon a defendant corporation, municipal or otherwise, shall be made in accordance with R. 4:4-4. If the defendant corporation does not appear, the court shall order the clerk to enter an appearance for said corporation and endorse the plea of not guilty on the indictment or accusation, and further proceedings may then be had thereon in the same manner as if the corporation had appeared and so pleaded. A plea to an indictment or accusation by a defendant corporation shall be made by an attorney of this State. (d) Service Upon a Corporation by Publication. If the summons directed to a corporation is returned "not served" and it appears to the satisfaction of the court that the summons could not be served, the court shall by order direct the corporation to cause its appearance and plea to be entered by a day certain. A copy of such order shall within 5 days after the date thereof be published in a newspaper in this State once, at least 2 weeks preceding the day certain so specified. If the defendant corporation does not appear within the time specified by the order, the court, if satisfied that publication has been duly made, shall direct the clerk to enter an appearance and a plea of "not guilty" for the defendant corporation, and thereupon further proceedings may be had on the indictment or accusation as provided by these rules. (e) Return. The officer executing a warrant shall make prompt return thereof to the court, and at the request of the prosecuting attorney any unexecuted warrant shall be returned and cancelled. The officer serving a summons shall make return thereof on or before the return day. At the request of the prosecuting attorney made at any time while the indictment or accusation is pending, a warrant returned unexecuted and not cancelled or a summons returned unserved or a duplicate thereof may be delivered by the clerk to the sheriff or other authorized officer for execution or service.

Note: Source-R.R. 3:4-11, 3:4-12(a)(b), 3:4-13. Paragraph (d) amended July 7, 1971 to be effective September 13, 1971.

Consequences of a Criminal Guilty Plea

1. You will have to appear in open court and tell the judge what you did that makes you guilty of the particular offense(s)

2. Do you understand that if you plead guilty:

a. You will have a criminal record

b. You may go to Jail or Prison.

c. You will have to pay Fines and Court Costs.

3. If you are on Probation, you will have to submit to random drug and urine testing. If you violate Probation, you often go to jail.

4. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing.

5. You must pay restitution if the court finds there is a victim who has suffered a loss and if the court finds that you are able or will be able in the future to pay restitution.

6. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty.

7. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty.

8. You must wait 5-10 years to expunge a first offense. 2C:52-3

9. You could be put on Probation.

10. In Drug Cases, a mandatory DEDR penalty of $500-$1,000, and lose your driver's license for 6 months - 2years. You must pay a Law Enforcement Officers Training and Equipment Fund penalty of $30.

11. You may be required to do Community Service.

12. You must pay a minimum Violent Crimes Compensation Board assessment of $50 ($100 minimum if you are convicted of a crime of violence) for each count to which you plead guilty.

13. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction.

14. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation.

15. You lose the presumption against incarceration in future cases. 2C:44-1

16. You may lose your right to vote.

The defense of a person charged with a criminal offense is not impossible. There are a number of viable defenses and arguments which can be pursued to achieve a successful result. Advocacy, commitment, and persistence are essential to defending a client accused of a criminal offense.

Jail for Crimes and Disorderly Conduct:

If someone pleads Guilty or is found Guilty of a criminal offense, the following is the statutory Prison/Jail terms.

NJSA 2C: 43-8 (1) In the case of a crime of the first degree, for a specific term of years which shall be fixed by the court and shall be between 10 years and 20 years;

(2) In the case of a crime of the second degree, for a specific term of years which shall be fixed by the court and shall be between five years and 10 years;

(3) In the case of a crime of the third degree, for a specific term of years which shall be fixed by the court and shall be between three years and five years;

(4) In the case of a crime of the fourth degree, for a specific term which shall be fixed by the court and shall not exceed 18 months.

2C:43-3 Fines have been increased recently! 2C:43-3. Fines and Restitutions. A person who has been convicted of an offense may be sentenced to pay a fine, to make restitution, or both, such fine not to exceed:

a. (1) $200,000.00 when the conviction is of a crime of the first degree;

(2) $150,000.00 when the conviction is of a crime of the second degree;

b. (1) $15,000.00 when the conviction is of a crime of the third degree;

(2) $10,000.00 when the conviction is of a crime of the fourth degree;

c. $1,000.00, when the conviction is of a disorderly persons offense;

d. $500.00, when the conviction is of a petty disorderly persons offense;

If facing any criminal charge, retain an experienced attorney immediately to determine you rights and obligations to the court. Current criminal charge researched by Kenneth Vercammen, Esq. 732-572-0500

http://www.njlaws.com/entitling_of_papers.html?id=383&a=

Employment Law in NJ

Reinaldo Carmona v. Resorts International Hotel, Inc. (A-83-05)

- Decided February 21, 2007

RIVERA-SOTO, J., writing for the majority of the Court.

In this appeal, the Court must determine: 1) whether an employee's complaint for retaliation under the Law Against Discrimination (LAD) must be made in good faith and on a reasonable basis; and 2) whether an investigative report prepared by an employer, which the employer claims provided an independent basis for the employee's discharge, should have been admitted into evidence.

Plaintiff Reinaldo Carmona was hired as a front desk clerk by defendant Resorts International Hotel Inc. On November 9, 2001, Carmona was fired. The reason for his termination gave rise to this lawsuit.

According to Carmona, he was a recovering cocaine user prone to relapses. Because of the relapses, he missed work on several occasions. Under Resorts' progressive discipline, the absences accumulated as "points" against Carmona. By August 2001, Carmona had accumulated enough points so that another unexplained absence would render him liable for termination. While Carmona could have explored seeking an approved medical leave to treat his cocaine dependency, he focused instead on other Resorts employees who had received approved medical leave absences, claiming that Resorts applied its absenteeism/termination policy unevenly due to racism. On November 6, 2001, Carmona went to Resorts' internal equal employment opportunity (EEO) office to complain. Resorts' EEO director informed Carmona that she would conduct an investigation of his allegations.

On November 5, 2001, the day before Carmona complained to Resorts' EEO office, he and William Santiago were observed improperly upgrading rooms in exchange for tips. Twice before, Carmona had been reprimanded for upgrading rooms without authorization. Santiago was interviewed, during which he admitted that he had upgraded rooms for gratuities. Santiago also implicated Carmona. On November 8, 2001, Resorts conducted an audit that showed that Carmona had improperly and without authorization upgraded twenty-seven rooms in October 2001. When questioned on November 9, 2001, Carmona admitted to upgrading rooms without authorization, although he denied receiving gratuities. He was fired that day. Resorts investigators collected their investigative material and compiled a report concerning the incident.

In April 2002, Carmona sued Resorts. The issues at trial, according to Carmona, were whether Resorts retaliated against him when it terminated him three days after he filed his discrimination complaint against Resorts and whether Resorts' investigation into the room upgrades was a pretext to justify that retaliation. At trial, Resorts sought to introduce the investigative report into evidence. Carmona objected, and the trial court ruled that the report was not admissible because it was hearsay and unreliable. The trial court refused to instruct the jury that in addition to making a complaint of discrimination, Carmona had to have a reasonable good faith basis for the complaint. Instead, the trial court instructed the jury that to satisfy his burden of proof, Carmona must prove that he made a complaint of discrimination and that he was retaliated against because of that filing. The jury found that Carmona proved that the reason Resorts gave for Carmona's termination was a pretext and the real reason was retaliation for his complaint of discrimination. The jury awarded Carmona compensatory damages and lost wages.

On appeal, the Appellate Division affirmed. This Court granted Resorts' petition for certification.

HELD: In a case alleging retaliation under the LAD, plaintiff bears the burden of proving that his complaint was made reasonably and in good faith. When an employer defends against a claim that an employee's discharge was the product of retaliation, an investigative report prepared by the employer that purports to demonstrate a non-retaliatory purpose for the employee's termination is not hearsay and is admissible.

The LAD is one of New Jersey's leading legislative pronouncements, which sets forth the clear public policy of this State to eradicate invidious discrimination from the workplace. In the development of this State's anti-discrimination jurisprudence, the Court has frequently looked to case law under the federal Title VII of the Civil Rights Act for guidance in developing standards to govern the resolution of LAD claims. The Court's continuing examination of the LAD has led it also to look to subsequent legislative enactments for guidance on LAD's scope, including the later-adopted New Jersey Conscientious Employee Protection Act (CEPA). A CEPA plaintiff must show that he reasonably believed that his employer's conduct was violating either a law, rule, or regulation promulgated pursuant to law or a clear mandate of public policy. (pp. 17-20)

A requirement that a LAD-retaliation plaintiff demonstrate that his underlying complaint was reasonable and in good faith is entirely consonant with the purpose of the LAD. The Court follows parallel federal precedents, under which a plaintiff must show that he had a reasonable, good-faith belief that discrimination occurred to prevail on a retaliation claim, a tenet universally observed by every United States Court of Appeals that has considered the question. (pp. 20-21)

This requirement that the underlying complaint be reasonable and made in good faith is recognized because its absence may well lead to abuse. The LAD was and is intended as a shield to protect employees from the wrongful acts of their employers, and not as a sword to be wielded by a savvy employee against his employer.
(pp. 21-22)

Here, Resorts was denied an instruction to the jury to the effect that, as part of his case-in-chief, Carmona was required to prove that he had a reasonable, good-faith belief for his underlying discrimination complaint as the basis for his later retaliation complaint. Carmona did not complain about discrimination in the application of Resorts' absenteeism policy until November 6, 2001, the day after an investigation into allegations of theft by Carmona was started. The trial court charged the jury that the bare fact that Carmona filed a complaint alleging discrimination, without more, was sufficient to satisfy his burden in respect of the first element of his LAD-retaliation claim, a charge that the Court holds to be legally insufficient and incorrect. The jury could have come to a different result had it been correctly instructed. (pp. 23-25)

An investigative report concerning an employee is admissible as non-hearsay evidence whenever the employer's motivations are directly at issue. Moreover, in the context of a LAD retaliation claim, a personnel file was admissible because the information in the file bears on the reasonableness and good faith of defendant's conduct. There is no appreciable difference between a personnel file -- which is created and maintained exclusively by the employer -- and an investigative report. Further support is found in federal cases that parallel the LAD. Other states also follow this rule. (pp. 25-30)

Resorts' investigative report would be admissible to show that Resorts terminated Carmona's employment for non-pretextual reasons, provided Resorts also demonstrates (1) that one of its decision makers knew of the report's contents and acted in reliance thereon, and (2) that all portions of the report were separately admissible or properly and intelligibly redacted. (pp. 30-31)

The judgment of the Appellate Division is REVERSED and REMANDED for proceedings consistent with this opinion.

JUSTICE WALLACE has filed a separate, DISSENTING, opinion, concluding that the Court should not impose a new standard that requires an employee to establish that the complaint for retaliation was made in good faith and on a reasonable basis.

JUSTICES LONG, LaVECCHIA, ZAZZALI and ALBIN join in JUSTICE RIVERA-SOTO's opinion. JUSTICE WALLACE filed a separate, DISSENTING opinion.

SUPREME COURT OF NEW JERSEY

A- 83

REINALDO CARMONA,

Plaintiff-Respondent,

and

WILLIAM SANTIAGO,

Plaintiff,

v.

RESORTS INTERNATIONAL HOTEL, INC., d/b/a RESORTS ATLANTIC CITY,

Defendant-Appellant.

Decided February 21, 2007


http://www.njlaws.com/employment_law.html?id=380&a=

39:4-066 Emerging from an Alley in NJ

39:4-66

Failure to stop vehicle before crossing sidewalk


39:4-66. Emerging from alley, driveway, garage, or private road or driveway 39:4-66. a. The operator of a vehicle emerging from an alley, driveway, garage, or private road or driveway, shall stop the vehicle immediately prior to driving upon the sidewalk, and shall proceed to enter the sidewalk only after yielding the right of way to a pedestrian on the sidewalk, if the pedestrian is so close as to constitute an immediate hazard.

b. In addition to any duty imposed under subsection a. of this section, the operator of a vehicle emerging from an alley, driveway, garage, or private road or driveway, shall stop the vehicle immediately prior to entering or crossing a highway, and shall proceed to enter or cross the highway only after yielding the right of way to the traffic on the highway, if the traffic is so close as to constitute an immediate hazard.

2 points

Fine $50 or jail to exceed 15 days, or both

For information on points, fines, jail and suspension for this violation, go to KennethVercammen.com/traffic_minimum_penalties.htm

Protect your Rights.

Before you pled guilty and face potentially thousands of dollars in fees and surcharges, schedule an in office appointment with our attorneys experienced in handling these matters.

http://www.njlaws.com/emerging_from_alley.html?id=377%20.a=

2C:029-002b Eluding Officer in NJ

2C:29-2. Resisting arrest, eluding officer

a. (1) Except as provided in paragraph (3), a person is guilty of a disorderly persons offense if he purposely prevents or attempts to prevent a law enforcement officer from effecting an arrest. (2) Except as provided in paragraph (3), a person is guilty of a crime of the fourth degree if he, by flight, purposely prevents or attempts to prevent a law enforcement officer from effecting an arrest. (3) An offense under paragraph (1) or (2) of subsection a. is a crime of the third degree if the person:

(a)Uses or threatens to use physical force or violence against the law enforcement officer or another; or

(b)Uses any other means to create a substantial risk of causing physical injury to the public servant or another.

It is not a defense to a prosecution under this subsection that the law enforcement officer was acting unlawfully in making the arrest, provided he was acting under color of his official authority and provided the law enforcement officer announces his intention to arrest prior to the resistance.

b.Any person, while operating a motor vehicle on any street or highway in this State or any vessel, as defined pursuant to section 2 of P.L.1995, c.401 (C.12:7-71), on the waters of this State, who knowingly flees or attempts to elude any police or law enforcement officer after having received any signal from such officer to bring the vehicle or vessel to a full stop commits a crime of the third degree; except that, a person is guilty of a crime of the second degree if the flight or attempt to elude creates a risk of death or injury to any person. For purposes of this subsection, there shall be a permissive inference that the flight or attempt to elude creates a risk of death or injury to any person if the persons conduct involves a violation of chapter 4 of Title 39 or chapter 7 of Title 12 of the Revised Statutes. In addition to the penalty prescribed under this subsection or any other section of law, the court shall order the suspension of that persons drivers license, or privilege to operate a vessel, whichever is appropriate, for a period of not less than six months or more than two years.

In the case of a person who is at the time of the imposition of sentence less than 17 years of age, the period of the suspension of driving privileges authorized herein, including a suspension of the privilege of operating a motorized bicycle, shall commence on the day the sentence is imposed and shall run for a period as fixed by the court. If the driving or vessel operating privilege of any person is under revocation, suspension, or postponement for a violation of any provision of this Title or Title 39 of the Revised Statutes at the time of any conviction or adjudication of delinquency for a violation of any offense defined in this chapter or chapter 36 of this Title, the revocation, suspension, or postponement period imposed herein shall commence as of the date of termination of the existing revocation, suspension, or postponement.

Upon conviction the court shall collect forthwith the New Jersey drivers licenses of the person and forward such license or licenses to the Director of the Division of Motor Vehicles along with a report indicating the first and last day of the suspension or postponement period imposed by the court pursuant to this section. If the court is for any reason unable to collect the license or licenses of the person, the court shall cause a report of the conviction or adjudication of delinquency to be filed with the director. That report shall include the complete name, address, date of birth, eye color, and sex of the person and shall indicate the first and last day of the suspension or postponement period imposed by the court pursuant to this section. The court shall inform the person orally and in writing that if the person is convicted of personally operating a motor vehicle or a vessel, whichever is appropriate, during the period of license suspension or postponement imposed pursuant to this section the person shall, upon conviction, be subject to the penalties set forth in R.S.39:3-40 or section 14 of P.L.1995, c.401 (C.12:7-83), whichever is appropriate. A person shall be required to acknowledge receipt of the written notice in writing. Failure to receive a written notice or failure to acknowledge in writing the receipt of a written notice shall not be a defense to a subsequent charge of violation of R.S.39:3-40 or section 14 of P.L.1995, c.401 (C.12:7-83), whichever is appropriate. If the person is the holder of a drivers or vessel operators license from another jurisdiction, the court shall not collect the license but shall notify the director who shall notify the appropriate officials in the licensing jurisdiction. The court shall, however, in accordance with the provisions of this section, revoke the persons non-resident driving or vessel operating privileges, whichever is appropriate, in this State.

For the purposes of this subsection, it shall be a rebuttable presumption that the owner of a vehicle or vessel was the operator of the vehicle or vessel at the time of the offense.

http://www.njlaws.com/2c_29-2beluding-officer.html?id=2071%20.a=

Elective Share of Surviving Spouse in NJ

If a spouse dies and their Will does not make bequests to the surviving spouse, there is a method to challenge or elect against the Will. The spouse can fight to receive one third of the decedents estate. This provides some protection so a spouse is not left penniless.

The Law Offices of Kenneth Vercammen & Associates handles Probate, contesting wills, contesting estates, mismanagement and theft, Probate disputes, inheritance problems, undue influence, contentious probates, and other relevant issues. We encourage you to consult an attorney if you are faced with any of these situations.

Do you think you're entitled to money or might be entitled to money from an estate or trust? Do you believe that someone is unfairly claiming money or property that is rightfully yours? If so, and you are a prospective plaintiff or defendant, then you may need an attorney to protect your rights.

These areas are extremely complex, and you should not attempt to reach a decision on whether or not to take action (and, if so what action to take) without the assistance of counsel.

You must call to schedule an in-office consultation as we cannot provide legal advice over the phone.

The following New Jersey statute sets forth the Elective share of surviving spouse. 3B:8-1. Elective share of surviving spouse of person dying domiciled in this State; conditions If a married person dies domiciled in this State, the surviving spouse has a right of election to take an elective share of one-third of the augmented estate under the limitations and conditions hereinafter stated, provided that at the time of death the decedent and the surviving spouse had not been living separate and apart in different habitations or had not ceased to cohabit as man and wife, either as the result of judgment of divorce from bed and board or under circumstances which would have given rise to a cause of action for divorce or nullity of marriage to a decedent prior to his death under the laws of this State.

3B:8-2. Elective share of surviving spouse of person dying not domiciled in this State If a married person not domiciled in this State dies, the right, if any, of the surviving spouse to take an elective share in property in this State is governed by the law of the decedents domicile at death.

3B:8-3. Meaning of augmented estate The augmented estate means the estate reduced by funeral and administration expenses, and enforceable claims, to which is added the value of property transferred by the decedent at any time during marriage, to or for the benefit of any person other than the surviving spouse, to the extent that the decedent did not receive adequate and full consideration in money or moneys worth for the transfer, if the transfer is of any of the following types:

a. Any transfer made after May 28, 1980, under which the decedent retained at the time of his death the possession or enjoyment of, or right to income from, the property;

b. Any transfer made after May 28, 1980, to the extent that the decedent retained at the time of his death a power, either alone or in conjunction with any other person, to revoke or to consume, invade or dispose of the principal for his own benefit;

c. Any transfer made after May 28, 1980, whereby property is held at the time of decedents death by decedent and another with right of survivorship;

d. Any transfer made, after May 28, 1980, if made within 2 years of death of the decedent, to the extent that the aggregate transfers to any one donee in either of the years exceed $3,000.00.

3B:8-4. Valuing property transferred Property transferred in the manner set forth in N.J.S. 3B:8-3 is valued as of the decedents death except that property given irrevocably to a donee during the lifetime of the decedent is valued as of the date the donee came into possession or enjoyment of the property if that occurs first.

3B:8-5. Transfers excluded Any transfer of property shall be excluded from the augmented estate under N.J.S. 3B:8-3, if made with the written consent or joinder of the surviving spouse. There shall also be excluded from the augmented estate any life insurance, accident insurance, joint annuity or pension payable to a person other than the surviving spouse.

3B:8-6. Other property to be included in augmented estate There shall also be included in the augmented estate:

a. The value of property owned by the surviving spouse at the time of, or as a result of, the decedents death to the extent that the property is derived from the decedent by means other than by testate or intestate succession without a full consideration in money or moneys worth; and

b. The value of the property described in subsection a. hereof which has been transferred by the surviving spouse at any time during marriage without a full consideration in money or moneys worth to any person other than the decedent which would have been includable in the spouses augmented estate if the surviving spouse had predeceased the decedent.

Income earned by included property prior to the decedents death is not treated as property derived from the decedent.

3B:8-7. Property derived from decedent For the purposes of N.J.S. 3B:8-6, property derived from the decedent includes, but is not limited to, any beneficial interest of the surviving spouse in a trust created by the decedent during his lifetime, any property appointed to the spouse by the decedents exercise of a general or special power of appointment also exercisable in favor of others than the spouse, any proceeds of insurance, including accidental death benefits on the life of the decedent attributable to premiums paid by him, any lump sum immediately payable and the commuted value of the proceeds of annuity contracts under which the decedent was the primary annuitant attributable to premiums paid by him, the commuted value of amounts payable after the decedents death under any public or private pension, disability compensation, death benefit or retirement plan, exclusive of the Federal Social Security system, by reason of service performed or disabilities incurred by the decedent, the value of the share of the surviving spouse resulting from rights in community property acquired in any other state formerly owned with the decedent and the value of any rights of dower and curtesy. Premiums paid by the decedents employer, his partner, a partnership of which he was a member, or his creditors, are deemed to have been paid by the decedent.

3B:8-8. Valuation of property derived from decedent For the purposes of valuing property derived from the decedent as provided in N.J.S. 3B:8-6:

a. Property owned by the spouse at the decedents death is valued as of the date of decedents death; and

b. Property transferred by the spouse is valued at the time the transfer became irrevocable, or at the decedents death, whichever occurs first.

3B:8-9. Presumption as to property owned or previously transferred by spouse at decedents death Property owned by the surviving spouse as of the decedents death, or previously transferred by the surviving spouse, is presumed to have been derived from the decedent except to the extent that any party in interest establishes that it was derived from another source.

3B:8-10. Waiving right to an elective share The right of election of a surviving spouse and the rights of the surviving spouse may be waived, wholly or partially, before or after marriage before, on or after May 28, 1980, by a written contract, agreement or waiver, signed by the party waiving after fair disclosure. Unless it provides to the contrary, a waiver of all rights (or equivalent language) in the property or estate of a present or prospective spouse or a complete property settlement entered into after or in anticipation of separation or divorce is a waiver of all rights to an elective share by each spouse in the property of the other and a renunciation by each of all benefits which would otherwise pass to him from the other by intestate succession or by virtue of the provisions of any will executed before the waiver or property settlement.

3B:8-11. Who may exercise the right to take an elective share The right of election to take an elective share by a surviving spouse may be exercised only during his lifetime. In the case of a surviving spouse for whom the court has appointed a guardian to manage his estate, the right of election may be exercised only by order of the court making the appointment after finding that the election is necessary to provide adequate support of the surviving spouse during his probable life expectancy.

3B:8-12. Filing complaint for elective share; extension of time The surviving spouse may elect to take his elective share in the augmented estate by filing a complaint in the Superior Court within 6 months after the appointment of a personal representative of the decedents estate. The court may, before the time for election has expired and upon good cause shown by the surviving spouse, extend the time for election upon notice to persons interested in the estate and to distributees and recipients of portions of the augmented estate whose interests will be adversely affected by the taking of the elective share.

3B:8-13. Notice of hearing The surviving spouse shall give notice of the time and place set for hearing to persons interested in the estate and to the distributees and recipients of portions of the augmented estate whose interests will be adversely affected by the taking of the elective share.

3B:8-14. Withdrawal of demand for an elective share The surviving spouse may withdraw his demand for an elective share at any time before entry of a final judgment by the court.

3B:8-15. Fixing amount of elective share; payment of elective share The court shall determine the amount of the elective share and shall order its payment from the assets of the augmented estate or by contribution as appears appropriate in the manner as hereinafter set forth in this chapter. If it appears that a fund or property included in the augmented estate has not come into the possession of the personal representative, or has been distributed by the personal representative, the court nevertheless shall fix the liability of any person who has any interest in the fund or property or who has possession thereof, whether as trustee or otherwise. The proceeding may be maintained against fewer than all persons against whom relief could be sought, but no person is subject to contribution in any greater amount than he would have been if relief had been secured against all persons subject to contribution.

3B:8-16. Enforcing judgment The judgment of the court made pursuant to N.J.S. 3B:8-15 may be enforced as other judgments are enforced by law.

3B:8-17. Value of surviving spouses interest in any life estate In an action for an elective share, the electing spouses total or proportional beneficial interest in any life estate in real or personal property or in any trust shall be valued at one-half of the total value of the property or trust or of the portion of the property or trust subject to the life estate.

3B:8-18. Satisfaction of elective share The amount of the surviving spouses elective share shall be satisfied by applying:

a. The value of all property, estate or interest therein, owned by the surviving spouse in his own right at the time of the decedents death from whatever source acquired, or succeeded to by the surviving spouse as a result of decedents death notwithstanding that the property, estate or interest or part thereof, succeeded to by the surviving spouse as the result of decedents death has been renounced by the surviving spouse;

b. The value of the property described in subsection b. of N.J.S. 3B:8-6, and

c. The remaining property of the augmented estate is so applied that liability for the balance of the elective share of the surviving spouse is equitably apportioned among the recipients of the augmented estate in proportion to the value of their interests therein.

For Probate and Estate Administration matters, schedule a confidential consultation with Kenneth Vercammen, 732-572-0500

KENNETH VERCAMMEN, ESQ.

SPEAKING ENGAGEMENTS ON WILLS, PROBATE & ELDER LAW

Nuts & Bolts of Elder Law - NJ Institute for Continuing Legal Education/ NJ State Bar ICLE/NJSBA 2015, 2014, 2013, 2012, 2011 2010, 2009, 2008, 2007, 2006, 2005, 2004, 2003, 2002, 2000, 1999, 1996

Annual Update Wills, Probate & Estate Administration 2016

Edison Library Update on Wills and Estate Administration 2015, 2014, 2013

Metuchen Library Wills & Power of Attorney 2015

Piscataway Library Wills and Estate Planning 2015

South Brunswick Library Estate Planning 2015

Old Bridge Library Wills and Estate Administration 2015

Sayreville Senior Center Wills & Estate Administration 2015

-Elder Law and Estate Planning- American Bar Association ABA San Francisco 2013, Chicago 2012, Toronto 2011, Chicago 2009, New York City 2008, Miami 2007

-Highland Park Seniors 2015, 2010; East Brunswick Adult School 2009, 2008 Avenel Golden Circle 2010'

Middlesex County Police Chiefs 2009- Living Wills

Middlesex County College- Wills & Probate 2007

Edison Adult School -Wills, Elder Law & Probate- 2007, 2006, 05, 04, 03, 2002 [inc Edison TV], 01, 00,99,98,97

South Plainfield Seniors- New Probate Law 2005, East Brunswick Seniors- New Probate Law 2005

Old Bridge AARP 2010, 2002; Guardian Angeles/ Edison 2002; St. Cecilia/ Woodbridge Seniors 2002;

East Brunswick/ Hall's Corner 2002;

-Linden AARP 2002

-Woodbridge Adult School-Wills and Estate Administration -2001, 2000,1999,1998,1997,1996

Woodbridge Housing 2001; Metuchen Seniors & Metuchen TV 2001; Frigidare/ Local 401 Edison 2001; Chelsea/ East Brunswick 2001, Village Court/ Edison 2001; Old Bridge Rotary 2001; Sacred Heart/ South Amboy 2001; Livingston Manor/ New Brunswick 2001; Sunrise East Brunswick 2001; Strawberry Hill/ Woodbridge 2001;

-Wills and Elder Law - Metuchen Adult School 1999,1997,1996,1995,1994,1993

-Clara Barton Senior Citizens- Wills & Elder Law-Edison 2002, 1995

-AARP Participating Attorney in Legal Plan for NJ AARP members 1999-2005

-Senior Legal Points University of Medicine & Dentistry UMDNJ & St. Peter's-2000, 1999,1998

-East Brunswick AARP Wills 2001; -Iselin/ Woodbridge AARP Wills 2000

-Metuchen Reformed Church; Franklin/ Somerset/ Quailbrook Seniors 2001

-North Brunswick Senior Day 2001

ADJUNCT PROFESSOR Middlesex County College Edison, NJ February, 2001-April, 2001; Jan. 1990-May, 1991

Elective share of surviving spouse

If a spouse dies and their Will does not make bequests to the surviving spouse, there is a method to challenge or elect against the Will. The spouse can fight to receive one third of the decedents estate. This provides some protection so a spouse is not left penniless.

The Law Offices of Kenneth Vercammen & Associates handles Probate, contesting wills, contesting estates, mismanagement and theft, Probate disputes, inheritance problems, undue influence, contentious probates, and other relevant issues. We encourage you to consult an attorney if you are faced with any of these situations.

Do you think youre entitled to money or might be entitled to money from an estate or trust? Do you believe that someone is unfairly claiming money or property that is rightfully yours? If so, and you are a prospective plaintiff or defendant, then you may need an attorney to protect your rights.

These areas are extremely complex, and you should not attempt to reach a decision on whether or not to take action (and, if so what action to take) without the assistance of counsel.

You must call to schedule an in-office consultation as we cannot provide legal advice over the phone.

The following New Jersey statute sets forth the Elective share of surviving spouse. 3B:8-1. Elective share of surviving spouse of person dying domiciled in this State; conditions If a married person dies domiciled in this State, the surviving spouse has a right of election to take an elective share of one-third of the augmented estate under the limitations and conditions hereinafter stated, provided that at the time of death the decedent and the surviving spouse had not been living separate and apart in different habitations or had not ceased to cohabit as man and wife, either as the result of judgment of divorce from bed and board or under circumstances which would have given rise to a cause of action for divorce or nullity of marriage to a decedent prior to his death under the laws of this State.

3B:8-2. Elective share of surviving spouse of person dying not domiciled in this State If a married person not domiciled in this State dies, the right, if any, of the surviving spouse to take an elective share in property in this State is governed by the law of the decedents domicile at death.

3B:8-3. Meaning of augmented estate The augmented estate means the estate reduced by funeral and administration expenses, and enforceable claims, to which is added the value of property transferred by the decedent at any time during marriage, to or for the benefit of any person other than the surviving spouse, to the extent that the decedent did not receive adequate and full consideration in money or moneys worth for the transfer, if the transfer is of any of the following types:

a. Any transfer made after May 28, 1980, under which the decedent retained at the time of his death the possession or enjoyment of, or right to income from, the property;

b. Any transfer made after May 28, 1980, to the extent that the decedent retained at the time of his death a power, either alone or in conjunction with any other person, to revoke or to consume, invade or dispose of the principal for his own benefit;

c. Any transfer made after May 28, 1980, whereby property is held at the time of decedents death by decedent and another with right of survivorship;

d. Any transfer made, after May 28, 1980, if made within 2 years of death of the decedent, to the extent that the aggregate transfers to any one donee in either of the years exceed $3,000.00.

3B:8-4. Valuing property transferred Property transferred in the manner set forth in N.J.S. 3B:8-3 is valued as of the decedents death except that property given irrevocably to a donee during the lifetime of the decedent is valued as of the date the donee came into possession or enjoyment of the property if that occurs first.

3B:8-5. Transfers excluded Any transfer of property shall be excluded from the augmented estate under N.J.S. 3B:8-3, if made with the written consent or joinder of the surviving spouse. There shall also be excluded from the augmented estate any life insurance, accident insurance, joint annuity or pension payable to a person other than the surviving spouse.

3B:8-6. Other property to be included in augmented estate There shall also be included in the augmented estate:

a. The value of property owned by the surviving spouse at the time of, or as a result of, the decedents death to the extent that the property is derived from the decedent by means other than by testate or intestate succession without a full consideration in money or moneys worth; and

b. The value of the property described in subsection a. hereof which has been transferred by the surviving spouse at any time during marriage without a full consideration in money or moneys worth to any person other than the decedent which would have been includable in the spouses augmented estate if the surviving spouse had predeceased the decedent.

Income earned by included property prior to the decedents death is not treated as property derived from the decedent.

3B:8-7. Property derived from decedent For the purposes of N.J.S. 3B:8-6, property derived from the decedent includes, but is not limited to, any beneficial interest of the surviving spouse in a trust created by the decedent during his lifetime, any property appointed to the spouse by the decedents exercise of a general or special power of appointment also exercisable in favor of others than the spouse, any proceeds of insurance, including accidental death benefits on the life of the decedent attributable to premiums paid by him, any lump sum immediately payable and the commuted value of the proceeds of annuity contracts under which the decedent was the primary annuitant attributable to premiums paid by him, the commuted value of amounts payable after the decedents death under any public or private pension, disability compensation, death benefit or retirement plan, exclusive of the Federal Social Security system, by reason of service performed or disabilities incurred by the decedent, the value of the share of the surviving spouse resulting from rights in community property acquired in any other state formerly owned with the decedent and the value of any rights of dower and curtesy. Premiums paid by the decedents employer, his partner, a partnership of which he was a member, or his creditors, are deemed to have been paid by the decedent.

3B:8-8. Valuation of property derived from decedent For the purposes of valuing property derived from the decedent as provided in N.J.S. 3B:8-6:

a. Property owned by the spouse at the decedents death is valued as of the date of decedents death; and

b. Property transferred by the spouse is valued at the time the transfer became irrevocable, or at the decedents death, whichever occurs first.

3B:8-9. Presumption as to property owned or previously transferred by spouse at decedents death Property owned by the surviving spouse as of the decedents death, or previously transferred by the surviving spouse, is presumed to have been derived from the decedent except to the extent that any party in interest establishes that it was derived from another source.

3B:8-10. Waiving right to an elective share The right of election of a surviving spouse and the rights of the surviving spouse may be waived, wholly or partially, before or after marriage before, on or after May 28, 1980, by a written contract, agreement or waiver, signed by the party waiving after fair disclosure. Unless it provides to the contrary, a waiver of all rights (or equivalent language) in the property or estate of a present or prospective spouse or a complete property settlement entered into after or in anticipation of separation or divorce is a waiver of all rights to an elective share by each spouse in the property of the other and a renunciation by each of all benefits which would otherwise pass to him from the other by intestate succession or by virtue of the provisions of any will executed before the waiver or property settlement.

3B:8-11. Who may exercise the right to take an elective share The right of election to take an elective share by a surviving spouse may be exercised only during his lifetime. In the case of a surviving spouse for whom the court has appointed a guardian to manage his estate, the right of election may be exercised only by order of the court making the appointment after finding that the election is necessary to provide adequate support of the surviving spouse during his probable life expectancy.

3B:8-12. Filing complaint for elective share; extension of time The surviving spouse may elect to take his elective share in the augmented estate by filing a complaint in the Superior Court within 6 months after the appointment of a personal representative of the decedents estate. The court may, before the time for election has expired and upon good cause shown by the surviving spouse, extend the time for election upon notice to persons interested in the estate and to distributees and recipients of portions of the augmented estate whose interests will be adversely affected by the taking of the elective share.

3B:8-13. Notice of hearing The surviving spouse shall give notice of the time and place set for hearing to persons interested in the estate and to the distributees and recipients of portions of the augmented estate whose interests will be adversely affected by the taking of the elective share.

3B:8-14. Withdrawal of demand for an elective share The surviving spouse may withdraw his demand for an elective share at any time before entry of a final judgment by the court.

3B:8-15. Fixing amount of elective share; payment of elective share The court shall determine the amount of the elective share and shall order its payment from the assets of the augmented estate or by contribution as appears appropriate in the manner as hereinafter set forth in this chapter. If it appears that a fund or property included in the augmented estate has not come into the possession of the personal representative, or has been distributed by the personal representative, the court nevertheless shall fix the liability of any person who has any interest in the fund or property or who has possession thereof, whether as trustee or otherwise. The proceeding may be maintained against fewer than all persons against whom relief could be sought, but no person is subject to contribution in any greater amount than he would have been if relief had been secured against all persons subject to contribution.

3B:8-16. Enforcing judgment The judgment of the court made pursuant to N.J.S. 3B:8-15 may be enforced as other judgments are enforced by law.

3B:8-17. Value of surviving spouses interest in any life estate In an action for an elective share, the electing spouses total or proportional beneficial interest in any life estate in real or personal property or in any trust shall be valued at one-half of the total value of the property or trust or of the portion of the property or trust subject to the life estate.

3B:8-18. Satisfaction of elective share The amount of the surviving spouses elective share shall be satisfied by applying:

a. The value of all property, estate or interest therein, owned by the surviving spouse in his own right at the time of the decedents death from whatever source acquired, or succeeded to by the surviving spouse as a result of decedents death notwithstanding that the property, estate or interest or part thereof, succeeded to by the surviving spouse as the result of decedents death has been renounced by the surviving spouse;

b. The value of the property described in subsection b. of N.J.S. 3B:8-6, and

c. The remaining property of the augmented estate is so applied that liability for the balance of the elective share of the surviving spouse is equitably apportioned among the recipients of the augmented estate in proportion to the value of their interests therein.

http://www.njlaws.com/elective_share_of_surviving_spouse.html?id=1165&a=

Na’jee Jones -Kean University - Fall Internship 2019 with Kenneth Vercammen, Esq.

Na’jee Jones -Kean University - Fall Internship 2019 with Kenneth Vercammen, Esq.