Kenneth Vercammen, Esq is Chair of the ABA Elder Law Committee and presents seminars to attorneys and the public on Wills, Probate and other legal topics related to Estate Planning and Elder law. He is author of the ABA's book "Wills and Estate Administration. Kenneth Vercammen & Associates,
2053 Woodbridge Avenue - Edison, NJ 08817
(732) 572-0500 More information at www.njlaws.com/

Saturday, July 01, 2017

Durable Power of Attorney - Proving for someone to your affairs if you can’t

Helpful information from the NJ  Office of the Ombudsman for the Institutionalized Elderly
 Durable Power of Attorney -  
Proving for someone to your affairs if you can’t? 
Most people know they should have a will so their estate can be administered and distributed to beneficiaries promptly and efficiently upon their death.

Unfortunately, many people fail to plan adequately for lifetime disability that leaves them unable to legally handle their business, financial and personal affairs.

The durable power of attorney allows you to choose who will be in control of your affairs, should you be unable to act on your own behalf, eliminating the need for the courts to appoint a guardian.

Disability can arise from a number of different causes, such as illness, injury, an accident or old age. If this happens – and you have not executed a durable power of attorney – then the court may decide who will act on your behalf.

Known as guardianship and conservatorship proceedings, these court actions can consume time and money and leave the decision of who will handle your affairs in the hands of a judge.
Even an ordinary power of attorney, which gives a relative, friend or bank the power to act on your behalf, becomes invalid if you become incompetent.

The New Jersey Legislature responded to this problem by creating the “Durable Power of Attorney,” which remains in effect even if you become mentally incapacitated. Having a Durable Power of Attorney can save time, expense and the inconvenience of a court proceeding.
What are some advantages of a Durable Power of Attorney? 
• You – not a judge – select – your agent.
• It can give you and your family some peace of mind knowing that you have named someone to handle your affairs.
• It can save time and the expense of a court proceeding.
What is a power of attorney? 
You, as “principal,” name another individual or an institution (such as a bank) as your “agent” or “attorney-in-fact” to act for you in handling your affairs. The appointment gives them the power, for example, to sign checks and make deposits, pay bills, contract for medical or other professional services, sell property, obtain insurance and do all the things you do in managing your daily affairs.

The authority you give to your agent can be as broad (to do anything you could do) or as narrow (to sell a particular piece of real estate) as you choose to make it. A power of attorney should be in writing, signed by you in the presence of a notary public who witnesses your signature.

This way, your agent can prove he or she has the authority to act for you. The authority you give to your agent can be as broad (to do anything you could do) or as narrow (to sell a particular piece of real estate) as you choose to make it.

A power of attorney should be in writing, signed by you in the presence of a notary public who witnesses your signature. This way, your agent can prove he or she has the authority to act for you.

If you are giving your agent authority to make decisions about real estate you own, then the power of attorney is typically recorded, along with the deed, in the county clerk’s office.
Is a durable power of attorney different? 
Yes. Unlike a simple power of attorney, a durable power of attorney survives even if you become incapacitated and cannot act on your own behalf. It typically contains words like: “This power of attorney shall not be affected by subsequent disability or incapacity of the principal, or a lapse of time,” or “This power of attorney shall become effective upon the disability or incapacity of the principal.” In order to be valid, it must be signed by you before you become disabled.
Do I need a Durable Power of Attorney even if my spouse and I own everything “jointly?” 
Yes. If you are incapacitated, your spouse can still sign checks and make withdrawals on joint bank accounts, but your spouse cannot sell jointly owned stocks or your jointly owned home without your signature. Your spouse cannot name or change a beneficiary on your life insurance or your retirement benefits. Even if you own everything jointly, you both should consider having Durable Powers of Attorney.
Can I make a Durable Power of Attorney that is effective even while I am still able to handle my own affairs? Isn’t that dangerous? 
Yes, you can create a Durable Power of Attorney that is effective while you are still able to take care of your own affairs. The advantage here is that, should you become incapacitated, your agent does not have to produce medical evidence that you are unable to handle your own affairs.
On the other hand, you are giving your agent a lot of authority and that authority can be abused, even though your agent is obligated to act solely in your best interest. So it is very important that you give this power only to someone you trust completely.
Can I make a Durable Power of Attorney that becomes effective only if I become disabled? 
Yes, you or your lawyer could include a phrase that says something like: “This power of attorney shall become effective upon my disability.” You need to indicate how it will be determined that you are disabled so that when your agent tries to use the power of attorney (say at a bank), your agent will be able to produce evidence that proves your disability.

It’s up to you to decide if you want a Durable Power of Attorney that is presently effective or one that becomes effective only if you become disabled or incapacitated. A knowledgeable attorney can assist you in deciding what type of power of attorney best meets your needs.
Can I revoke a Durable Power of Attorney? 
As long as you have capacity, you can revoke your Durable Power of Attorney. The revocation should be in writing and it should be delivered to the agent and third parties with whom the agent is dealing. While a guardian appointed by the probate court cannot revoke a Durable Power of Attorney, a court may void the Power of Attorney as part of a guardianship order.

Finally, the Durable Power of Attorney terminates at the time of your death, unless there is uncertainty as to whether you are dead or alive. Until a third party has received actual notice of the principal’s death, the third party is not held liable for continuing to rely on the Durable Power of Attorney.
What are some specific authorities that might be given in a Durable Power of Attorney? 
Ordinarily, you want your agent to be able to do anything you could do, and so most Durable Powers of Attorney are very broad. Specifically, a durable power of attorney might authorize your agent to do any or all of the following on your behalf:

• Pay for support and care
• Borrow
• Conduct banking transactions
• Buy, sell or manage property
• Handle legal claims
• Gain entry to safety deposit boxes
• Deal with insurance and retirement benefits
• Prepare and file tax returns
• Exercise stockholder rights
• Contract for services
• Do Medicaid planning
• Collect Social Security and other benefits
• Exercise rights of the settlor or grantor of a trust

A Durable Power of Attorney may be limited to authority over property and financial matters. If you want to authorize someone to make medical decisions for you when you are no longer able to do so, you should designate someone to act as your health-care proxy.
Whom should I name as my agent? 
You may name any adult (for example, a spouse, child, other relative or a friend), or you may name a private pay guardian (such as a bank or accountant). It is very important that

you choose an agent you trust and who is willing to act solely on your behalf. Remember, your agent may be making important financial and personal decisions for you.
Can I name more than one agent? 
Yes, you can name two or more agents. If you do name more than one agent, you should specify whether your agents can act independently or whether they must act jointly. If you name two agents to act jointly, however, a deadlock may develop if they cannot agree. Rather than naming two persons to act jointly, you could name one agent with an alternate to act if the first agent cannot or will not act. However, be mindful that it may be difficult for an alternate agent to convince third parties (for example, the bank teller) that the first agent cannot or will not act.
What are the agent’s obligations to me? 
Your agent is obligated to follow your instructions (oral and written) and act in your best interest. The agent should keep accurate records and accounts and act prudently. If your agent improperly handles your affairs, he or she is legally responsible for damages to you.
What if my agent abuses the authority? 
You can revoke the Durable Power of Attorney or, if because of your disability you are unable to revoke it, anyone interested in your welfare can ask the probate court to intervene and appoint a guardian to handle your affairs.

The guardian can require the agent to account and report, and if warranted, petition the court to amend, suspend or revoke the Durable Power of Attorney. In addition, you (or your guardian) can sue your agent for damages caused by the agent’s abuse of authority.
What are some problems with a Durable Power of Attorney? 
In order for a Durable Power of Attorney to be workable, you have to give the agent a great deal of power and authority. Thus, you should be sure to choose someone you trust and have confidence in to handle your affairs.

Another problem occurs if you have an individual as your agent and he or she “quits” or “dies” or becomes disabled. In such an event, if you are mentally incapacitated and have not named an alternate agent, there will be no one to act on your behalf.

One of the biggest problems with any power of attorney is there is no guarantee that it will be accepted or recognized by third parties. For example, if the purpose of the Durable Power of Attorney is to deal with governmental agencies, such as the Social Security Administration, the Veterans Administration or the Internal Revenue Service, one must either use the agency’s special Power of Attorney form, or make sure that the Durable Power of Attorney presented to the agency contains the special wording required by each agency’s particular form.
How do I go about getting a Durable Power of Attorney? 

Because of the complexities involved, it is recommended that you consult with a knowledgeable lawyer who can prepare a Durable Power of Attorney to suit your needs and to advise you on its use.

Everyone should consider the advantages of having a Durable Power of Attorney. It’s an important part of long-term-care planning.

If you are giving your agent authority to make decisions about real estate you own, then the power of attorney is typically recorded, along with the deed, in the county clerk’s office. More info at http://www.nj.gov/ooie/helpful/durable_power_attorney.html

Tuesday, June 06, 2017

Second Baptist Church Rahway Golden Rule Auxiliary Wills, Estate Planning & Probate Seminar June 15

Second Baptist Church Rahway Golden Rule Auxiliary
Wills, Estate Planning & Probate Seminar
June 15 at 11:30
        
at Second Baptist Church
378 E Milton Ave Rahway, NJ 07065

Senior Citizen Awareness Seminar
WILLS & ESTATE ADMINISTRATION-PROTECT YOUR FAMILY AND MAKE PLANNING EASY

SPEAKER: Kenneth Vercammen, Esq. Edison, NJ (Author- Wills and Estate Administration by the ABA)

Main Topics:
 1. 2017 changes to NJ Estate Tax & changes to taxes on pensions
2. Updates in Federal Estate and Gift Tax 
3. The New Probate Law and preparation of Wills   
4. Why a new Power of Attorney is important 
5.  Living Wills             
6.  Administering the Estate/ Probate/Surrogate   

COMPLIMENTARY MATERIAL: Brochures on Wills, "Answers to Questions about Probate" and Administration of an Estate, Power of
Attorney, Living Wills, Real Estate Sales for Seniors, and Trusts.
Wilma Hoggard, Golden Rule Auxiliary President

    Free Will Seminars and Speakers Bureau for Groups
       
        10 years ago the AARP Network Attorneys of the Edison/Metuchen/Woodbridge area several years ago established a community Speakers Bureau to provide educational programs to AARP and senior clubs, Unions and Middlesex County companies. Now, Ken Vercammen, Esq. and volunteer attorneys of the Middlesex County Estate Planning Council have provided Legal Rights Seminars to hundreds of seniors, business owners and their employees, unions, clubs and non-profit groups. For additional information on the Legal Seminars, contact our Coordinator, Kenneth Vercammen's law office at (732) 572-0500, email VercammenLaw@njlaws.com 
Details on free programs available

These quality daytime educational programs will educate and even entertain. Clubs and companies are invited to schedule a free seminar. The following Seminars are now available:
1. WILLS & ESTATE ADMINISTRATION-PROTECT YOUR FAMILY AND
MAKE PLANNING EASY
2. POWER OF ATTORNEY to permit family to pay your bills if you are temporarily disabled and permit doctors to talk with family
       All instructors are licensed attorneys who have been in practice at least 25 years. All instructors are members of the American Bar Association, New Jersey
State Bar Association, and Middlesex County Bar Association. All programs include free written materials.

       You don't have to be wealthy or near death to do some thinking about a Will. Here is your opportunity to listen to an experienced attorney who will discuss how to distribute your property as you wish and avoid many rigid provisions of state law.

      Topics discussed include: Who needs a Will?; What if you die without a Will (intestacy)?; Mechanics of a Will; "Living Will"; Powers of Attorney; Selecting an executor, trustee, and guardian; Proper Will execution; Inheritance Taxes, Estate Taxes  14,000 annual gift tax exclusion,  Bequests to charity, Why you need a "Self-Proving" Will and  Estate Administration/ Probate.

       Sample materials: Hand-outs on Wills, Living Wills/Medical Advance Directive, Power of Attorney, Probate and Administration of an Estate, Real Estate, Working with your Attorney, Consumers Guide to New Jersey Laws, and Senior Citizen Rights.

SPEAKERS BUREAU

        At the request of senior citizen groups, unions, and Middlesex County companies and organizations, the " Speakers Bureau " is a service designed to educate citizens about how laws affect their lives and how the judicial system operates. We have attorneys available to speak to businesspersons, educational, civic and social organizations on a wide range of topics during business hours.

In today's complex world, few people can function successfully and safely without competent legal advice. In order to insure your estate plans are legally set up, you need to know exactly where you stand so that you can avoid possibly catastrophic mistakes impacting both you and your family.

About the speaker: Kenneth A. Vercammen is a trial attorney in Edison, NJ. We is the author of the American Bar Association’s book “Wills and Estate Administration”
He is co-chair of the ABA Probate & Estate Planning Law Committee of the American Bar Association Solo Small Firm Division.  He is a speaker for the NJ State Bar Association at the annual Nuts & Bolts of Elder Law & Estate Administration program.
He was Editor of the ABA Estate Planning Probate Committee Newsletter. Mr. Vercammen has published over 150 legal articles in national and New Jersey publications on litigation, elder law, probate and trial topics. He is a highly regarded lecturer on litigation and probate law for the American Bar Association, NJ ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published in noted publications included New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer. He established the NJlaws website www.njlaws.com which includes many articles on Estate Planning, Probate and Wills. He is a member of the AARP and often lectures to groups on the importance of an up to date Will, Power of Attorney and Living Will.
 KENNETH  VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
 (Fax)    732-572-0030
www.njlaws.com


2017 update Wills and Estate Planning- Free Seminar June 14

 2017 update Wills and Estate Planning- Free Seminar
June 14 Wednesday
12:15-1:00 PM  

Law Office of Kenneth Vercammen,
2053 Woodbridge Ave, Edison, NJ 08817

      COST: Free if you pre-register by email. Complimentary materials provided at 12:00 sharp. We previously held this seminar for the Metuchen and Edison Adult schools. This program is limited to 15 people. Please bring a canned food donation, which will be given to St. Matthews St. Vincent DePaul Food Bank. Please email us if you plan on attending or if you would like us to email the materials.

SPEAKER: Kenneth Vercammen, Esq.                 
(Author- ABA Wills and Estate Administration)
1. NJ Estate Tax eliminated on Estates under $2,000,000 as of January 1, 2017
2. NJ Inheritance Tax stays if assets are going to persons other than spouse or children.   
3. Federal Estate Tax exemption increased to $5.49 million in 2017 but gifts limited to $14,000 per person
4. Set up a testamentary trust in your Will for Protection for spouses and leaving assets to children:
5. We recommend Self- Proving Wills since witnesses often move or pass away
6. The New Probate law NJ Senate Law No. 708  
7. NJ Supreme Court holds if an executor or trustee violates fiduciary duty they can be liable for attorneys fees
8. Power of Attorney- Do not use a form purchased online. 
9. Federal Health Privacy Law (HIPAA)- Have a new Living Will prepared
10. Competency required to sign a Will or Power of Attorney
      COMPLIMENTARY MATERIAL: Brochures on Wills, Probate and Administration of an Estate, Power of Attorney,  Living Wills, Real Estate Sales for Seniors, and Trusts.   

Facebook
https://www.facebook.com/events/1990955494469909
Co-Sponsor: Middlesex County Estate Planning Council
To attend email VercammenLaw@Njlaws.com
other Information call 732-572-0500
Can’t attend?  We can email you materials

Send email to VercammenLaw@Njlaws.com

Tuesday, May 30, 2017

2017 update Wills and Estate Planning- Free Seminar Wednesday June 14

 2017 update Wills and Estate Planning- Free Seminar
Wednesday June 14
12:15-1:00 PM  
Law Office of Kenneth Vercammen,
2053 Woodbridge Ave, Edison, NJ 08817

      COST: Free if you pre-register by email. Complimentary materials provided at 12:00 sharp. We previously held this seminar for the Metuchen and Edison Adult schools. This program is limited to 15 people. Please bring a canned food donation, which will be given to a community food bank. Please email us if you plan on attending or if you would like us to email the materials.

SPEAKER: Kenneth Vercammen, Esq.                 
(Author- ABA Wills and Estate Administration)
1. NJ Estate Tax eliminated on Estates under $2,000,000 as of January 1, 2017
2. NJ Inheritance Tax stays if assets are going to persons other than spouse or children.   
3. Federal Estate Tax exemption increased to $5.49 million in 2017 but gifts limited to $14,000 per person
4. Set up a testamentary trust in your Will for Protection for spouses and leaving assets to children:
5. We recommend Self- Proving Wills since witnesses often move or pass away
6. The New Probate law NJ Senate Law No. 708  
7. NJ Supreme Court holds if an executor or trustee violates fiduciary duty they can be liable for attorneys fees
8. Power of Attorney- Do not use a form purchased online. 
9. Federal Health Privacy Law (HIPAA)- Have a new Living Will prepared
10. Competency required to sign a Will or Power of Attorney
      COMPLIMENTARY MATERIAL: Brochures on Wills, Probate and Administration of an Estate, Power of Attorney, Living Wills, Real Estate Sales for Seniors, and Trusts.   


Co-Sponsor: Middlesex County Estate Planning Council
To attend email VercammenLaw@Njlaws.com
Other Information call 732-572-0500
Can’t attend?  We can email you materials
   2017 update Wills and Estate Planning Seminar materials
                By Kenneth Vercammen

1. NJ Estate Tax eliminated on Estates under $2,000,000 as of January 1, 2017
2. NJ Inheritance Tax stays if assets are going to persons other than spouse or children.   
3. Federal Estate Tax exemption increased to $5.49 million in 2017 but gifts limited to $14,000 per person
4. Set up a testamentary trust in your Will for Protection for spouses and leaving assets to children:
5. We recommend Self- Proving Wills since witnesses often move or pass away
6. The New Probate law NJ Senate Law No. 708 made a
7. NJ Supreme Court holds if an executor or trustee violates fiduciary duty they can be liable for attorneys fees
8. Power of Attorney- Do not use a form purchased online. 
9. Federal Health Privacy Law (HIPAA)- Have a new Living Will prepared
10. Competency required to sign a Will or Power of Attorney
    Materials also online at http://njprobate.blogspot.com/2017/01/2017-update-wills-and-estate-planning.html
        1. NJ Estate Tax eliminated on Estates under $2,000,000 as of January 1, 2017
      The new law phases out the estate tax over two years, by first replacing the current $675,000 threshold with a “true” exclusion amount established at $2.0 million for decedents dying on or after January 1, 2017, and then eliminating the estate tax for decedents dying on and after January 1, 2018. 
     P.L. 2016, c. 57 provides that the New Jersey Estate Tax exemption will increase from $675,000 to $2 million for the estates of resident decedents dying on or after January 1, 2017, but before January 1, 2018.  For these estates, the New Jersey Estate Tax no longer conforms to the provisions of the federal Internal Revenue Code of 1986 in effect on December 31, 2001 and instead follows the current federal Internal Revenue Code for determining the value of the estate, which will be subject to New Jersey Estate Tax.
Married couples filing jointly will, over the course of 4 years, exclude the first $100,000 in retirement from their income from their taxes, up from the current amount of $20,000.
There will be a $3,000 deduction for veterans of the armed forces.


      2. NJ Inheritance Tax must be paid if assets are going to persons other than spouse or children.
     In addition to the Estate Tax, New Jersey imposes an Inheritance Tax on the estates of certain resident and nonresident decedents. P.L. 2016, c. 57 made no changes to the New Jersey Inheritance Tax.
      Even if no inheritance tax due, a Tax Waiver on a house must still be obtained and filed if the house was not co-owned by the spouse.

INHERITANCE TAX BENEFICIARY CLASSES
Class A
No Tax
  • §Parent
  • §Grandparent
  • §Spouse
  • §Child of a decedent (includes legally adopted child)
  • §Grandchild, great-grandchild, etc. of a decedent
  • §Stepchild of a decedent
(Does not include a step-grandchild or great-step grandchild)
  • §Mutually acknowledged child
  • §Civil union partner (after 2/19/2007)
  • §Domestic partner (after 7/10/2004)
Class C
§Brother or sister of a decedent
§Spouse or surviving spouse of a child of a decedent
§Civil union partner or surviving civil union partner (after 2/19/2007) of a child of a decedent
Class D
§Anyone not included in Classes A, C, or E
Class E
No Tax
Including, but not limited to:
§Qualified charities
§Religious institutions
§Educational and medical institutions
§Non-profit benevolent or scientific institutions
§The State of New Jersey or any of its political subdivisions
See exempt organizations Exempt Organizations:
"Class E transferee" means any of the following:
The State of New Jersey or any political subdivision thereof;
Any educational institution, church, hospital, orphan asylum, public library or Bible and tract society or to, for the use of or in trust for any institution or organization organized and operated exclusively for religious, charitable, benevolent, scientific, literary or education purposes, including any institution instructing the blind in the use of dogs as guides, no part of the net earnings of which inures to the benefit of any private stockholder or other individual or corporation; provided, that the exemption does not extend to transfers of property to such education institutions and organizations of other states, the District of Columbia, territories and foreign countries which do not grant an equal and like exemption of transfers of property for the benefit of such institutions and organizations of this State.

2017 INHERITANCE TAX RATES

Class A- No tax is due

First $25,000.......................No tax is due
Next $1,075,000................ 11%
Next $300,000..................... 13%
Next $300,000..................... 14%
Over $1,700,000................... 16%

Class D [other people]
First $700,000......................... 15%*
Over $700,000......................... 16%

Class E- charities
No tax is due

     3. Federal Estate Tax exemption increased to $5.49 million in 2017 but gifts limited to $14,000 per person

     For 2017, the estate and gift tax exemption is $5.49 million per individual, up from $5.45 million in 2016.
    That means an individual can leave $5.49 million to heirs and pay no federal estate or gift tax. A married couple will be able to shield just shy of $11 million ($10.98 million) from federal estate and gift taxes.
The annual gift exclusion remains at $14,000 for 2017.

      Gifts permitted without Federal Estate & Gift tax remained at $14,000 per person. Gift Exclusions
The annual exclusion for gifts is $11,000 (2004-2005), $12,000 (2006-2008), $13,000 (2009-2012) and $14,000 (2013-2017).
However, the amount permitted for Medicaid transfers is zero. 

   4. Set up a testamentary trust in your Will for Protection for spouses and leaving assets to children:
       The Credit Shelter Trust (sometimes referred to as a “Bypass Trust” or an “A/B Trust”) was a popular estate planning technique used by married couples with combined assets to avoid the NJ Estate Tax. A Testamentary Trust (sometimes referred to as a Will trust or trust under will) is a trust, which arises upon the death of the testator [person who signed the Will]. A Credit Shelter Trust is a type of Testamentary Trust.
    The purpose of the Credit Shelter Trust was to avoid the wasting of federal and state exemptions on the death of the first spouse. Instead of leaving all assets to the surviving spouse and thereby exposing the surviving spouse’s estate to more tax, Nursing Home & Medicaid issues, plus elective share by a future spouse, both spouse’s Wills are drafted to establish a Credit Shelter Trust to come into existence and be funded on the first spouse’s death.
       Since NJ is eliminating the NJ Tax, a Testamentary Trust within the Will is still a useful device to help ensure children and grandchildren with receive money down the road. Otherwise, the surviving spouse can spend all the money in Atlantic City. The surviving spouse could also get remarried and do a new Will leaving all assets to the new spouse. Many families want to protect at least some of the money from wasteful spending or a new spouse.
      In a typical Testamentary Trust, the surviving spouse is entitled to receive all of the income from the Trust for his or her lifetime, and has the right to demand principal distributions for his or her health, education, support and maintenance in his or her accustomed manner of living. Distributions in excess of that standard require the cooperation of a Co-Trustee – often an adult child of the surviving spouse or a trust department of a bank.
      If the Testamentary Trust technique is implemented as part of a Client’s Estate Plan, you can hire the attorneys for a separate fee to assist the Client in re-titling his or her assets so that assets are available to fund the Credit Shelter Trust. Re-titling is necessary because most Clients tend to hold assets jointly with right of survivorship and assets must be titled individually in a person’s name in order to be eligible to fund a Testamentary Trust. We work with a tax attorney to help our clients. Protect your money if you pass away and your spouse gets re-married or has to go into a nursing home.
          Some persons even hire an attorney to set up a personal residence trust or irrevocable trust and have the assets taken out of your name and put into a trust or given to children and grandchildren in the trust. Minimum fees for trust are $3,000. This is not something a non-attorney can do on their own. It is also illegal for a non-attorney to provide legal advice or prepare most legal documents. 
      Beware of the “Elective share” rights of a new spouse. Have a Prenuptial Agreement if entering into a 2nd marriage
    Currently, the new spouse who is not given money in a Will can challenge the terms of the Will. This is called "electing against the Will by a spouse". A spouse could receive up to 1/3 of the estate, even if only married for 2 weeks. The spouse must file a Caveat or lawsuit in Superior Court.  We suggest a formal prenuptial agreement in 2nd marriage situations. If there is no Will, the new spouse receives 50% of the estate even if only married three days.

     5. We recommend proper Self- Proving Wills since witnesses often move or pass away
      An old New Jersey Probate law required one of the two witnesses to a Will to travel and appear in the Surrogate’s office and sign an affidavit to certify they were a witness. This often created problems when the witness was deceased, moved away, or simply could not be located.  Some witnesses would require a $500 fee to simply sign a surrogate paper. My Grandmother’s Will was not self- proving, and the witness to Will extorted a $500 fee.
      The New Jersey Legislature later passed a law to create a type of Will called a “Self-Proving Will.”  In such a Will, the person for whom the Will is made must sign.  Then two witnesses sign.  Then the attorney or notary must sign; with certain statutory language to indicate the Will is self-proving.  Beware of online documents not prepared by an attorney. Never use a cheap form on line. No one tries to do their own electrical work on their home anymore or change their own oil. Have a professional do it right.
      When done properly, the executor does not have to locate any witnesses. This usually saves time and money.  If your Will is not “self-proving” or if you are unsure, schedule an appointment with an estate planning attorney. Some law offices ignore the revised law, and fail to prepare self proving Wills. Do not use a law office that follows old methods and does not do a self-proving Will.

     6. The New Probate law NJ Senate Law No. 708 made a number of substantial changes to the NJ probate laws.
    
        Non-formal writings could be Wills under the New Probate Law provisions governing the administration of estates and trusts in New Jersey.  So make sure you have a Formal Will drafted by an estate attorney.
      You must have your original Will. A photocopy cannot be admitted to probate. Don’t leave the original in a Wells Fargo safe deposit box that cannot easily be accessed by Executor 2.
  The law expanded situations where writings that are intended as Wills would be allowed, but requires that the burden of proof on the proponent would be by clear and convincing evidence. Possibly a Christmas card with handwritten notes could be presented as a Will or Codicil. To present a non-formal Will or writing requires an expensive Complaint and Order to Show Cause to be filed in the Superior Court, and a hearing in front of a Superior Court Judge. Be careful; have a Will done properly by an experienced attorney.

     7. NJ Supreme Court holds if an executor or trustee violates fiduciary duty they can be liable for attorneys fees
In the Matter of the Estate of Adrian J. Folcher (A-3-14) (074590) the NJ Supreme Court addressed improper acts by family members in the handling of money and assets. In case of In re Niles Trust, 176 N.J. 282 (2003) the Court declared that “when an executor or trustee commits the pernicious tort of undue influence, an exception to the American Rule is created that permits the estate to be made whole by an assessment of all reasonable counsel fees against the fiduciary that were incurred by the estate.” 176 N.J. at 298-99. The Court explained that “[a] fiduciary relationship exists between a trustee and the trust[,] similar to the attorney-client relationship,” and that “[both the attorney and a trustee act as officers of the court when acting on behalf of clients and beneficiaries.” Id. at 297. The Court concluded that non-attorney status should not prevent an award of attorneys’ fees in suits against trustees or executors for undue influence. Id. at 299.
Thus, Niles created an exception to the American Rule in trustee or executor undue influence cases “based on the fiduciary’s intentional misconduct regardless of his or her professional status.” Id. at 300.
Underscoring the foundational importance of the finding of undue influence that supported fee-shifting to a fiduciary and his facilitating cohort in Niles, the Supreme Court declined to extend that fee-shifting exception in the circumstances presented in Vayda. There, a non-attorney executor of an estate was found to have acted negligently and with bad faith in his administration of the estate, but he was not found to have committed undue influence. Vayda, supra, 184 N.J. at 124. Reaffirming New Jersey’s “strong public policy against” fee shifting, ibid. (quoting Niles, supra, 176 N.J. at 293), the Court unanimously resisted the plea to extend Niles. The Court pointed out instead that Rule 4:42-9(a)(3) provides a specific remedy in probate actions; attorneys’ fees could be paid from the estate. Ibid.
Five years later, our decision in Stockdale, supra, reaffirmed, albeit in dicta, the narrowness of our fee-shifting exception created in Niles. 196 N.J. at 307 (emphasizing that Niles was “directed solely to circumstances in which ‘an executor or trustee commits the pernicious tort of undue influence’” (quoting Niles, supra, 176 N.J. at 298)). The circumstances of Stockdale provide guidance in the present matter.
Stockdale was a wealthy, elderly, reclusive woman in declining health, who had planned to leave much of her estate to a local charity (the first aid squad), when her neighbor Sollitto insinuated himself into her life. Id. at 284-86. Through a series of orchestrated acts, Sollitto with help from an attorney friend, Casale, had Stockdale deed her home to Sollitto; amend her will; name Casale the executor of the estate; make Sollitto the residual beneficiary; and forgive the purchase-money mortgage she took when Sollitto purchased her home that covered almost the entirety of the purchase price. Id. at 290-94.
The trial court found that the Will was unenforceable as the product of undue influence. Id. at 297. The transfer of Stockdale’s home, including the deed and the contract of sale, was also found to be unenforceable. Ibid. The trial court reinstated the original will -- the will naming the local charity as the residual beneficiary. Ibid. Relying on Niles, the trial court granted the charity attorneys’ fees as a form of punitive damages, reasoning that undue influence is a form of intentional tort that can sustain a fee award. Ibid. According to the trial court, the fee award was a measure of punitive damages that was necessary to make the estate whole. Ibid.
The Appellate Division reversed the fee award and “remanded for consideration of an award of punitive damages.” Id. at 298. The fee award was not supported “under Niles because Stockdale’s estate was not financially depleted by Casale’s and Sollitto’s conduct.” Ibid.
Sollitto, and not the first aid squad, filed a petition for certification, arguing that Niles did not authorize a punitive award. Id. at 299. Thus the issue before this Court was not the reversal of the fee award but rather whether punitive damages could be a remedy for the undue influence tort in probate proceedings.
This Court found that punitive damages were available in the probate part in the rare case. Id. at 304. The Supreme Court noted that, in the usual undue influence case, “undue influence is not a separately pleaded tort, but is the analytical framework within which the decision about whether to admit a will to probate is made.” Ibid. The main issue normally is which will to admit to probate. Ibid. If none of the competing parties has gained control of the estate, the estate has suffered no loss, and “the only remedy sought is the admission of a particular will to probate.” Ibid.
      However, the Supreme Court explained that a tort-based claim for compensatory damages can be asserted when the estate has suffered loss, if, for example, one of the parties has depleted the estate’s assets. Ibid. Even then, a compensatory award will be rare because equitable relief will usually suffice. Id. at 304-05. An executor is generally entitled to a commission based on the value of the estate; but if an executor engages in misconduct, his commission may be surcharged, and his monies offset by the loss he caused the estate. Id. at 305. Further, the Supreme Court explained that the surcharge “does not equate with a compensatory award.” Ibid. When those remedies prove inadequate, a compensatory award, and in turn a punitive award, can be justified. Id. at 309.
     Those who hold the legal title of executor or trustee plainly owe a fiduciary duty to the beneficiaries of the estate or the trust respectively. But there is no dispute on this record that Bernice was not Folcher’s executor and that she did not owe a formal fiduciary duty to the Estate or to its beneficiaries. Bernice was in a confidential relationship with only her husband. The burden of establishing undue influence rests with the party contesting the will. However, “[when there is a confidential relationship coupled with suspicious circumstances, undue influence is presumed and the burden of proof shifts to the Will proponent to overcome the presumption.” Stockdale, supra, 196 N.J. at 303.

     8. Power of Attorney- Do not use a form purchased online.
      A Power of Attorney should contain reference to the NJ statute requiring banks to honor the Power of Attorney. Section 2 of P.L. 1991, c. 95 (c. 46:2B-11). A NJ bank does not have honor a Power of Attorney without the NJ language.

     9. Federal Health Privacy Law (HIPAA)- Have a new Living Will prepared
         A federal regulation known as the Health Insurance Portability and Accountability Act (HIPAA) was adopted regarding disclosure of individually identifiable health information. This necessitated the addition of a special release and consent authority to all healthcare providers before medical information will be released to agents and interested persons of the patients.     
       The effects of HIPAA are far reaching, and can render previously executed estate planning documents useless, without properly executed amendments, specifically addressing these issues.
        Any previously executed Powers of Attorney, Living Wills, Revocable Living Trusts, and certainly all Medical Directives now require HIPAA amendments.  After you sign the Living Will in your attorney’s office, provide a copy to your doctor and family.
         Powers of attorneys and Living Wills should be updated to reference this new law. More information on the HIPAA law at http://www.njlaws.com/hipaa.html
      
10. Competency required to sign a Will or Power of Attorney
     Attorneys cannot prepare a Power of Attorney, Will or any other legal document unless a person is mentally competent. If someone is unable to come into our office, we require the client or client’s family to have the treating Doctor sign the “Doctor Certification of Patient Capacity to Sign Legal Documents” It is the client or client’s family’s responsibility to contact the doctor, obtain the signed Certification at the clients’ expense, and then provide the law office with the original signed Certification. A Law Office cannot accept phone calls stating someone is competent. Therefore, it is wise do have your documents drafted while you can drive and are healthy.

More information on Wills and Probate at
      To schedule an appointment for Wills and Estate Planning
Contact KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW 2053 Woodbridge Ave. Edison, NJ 08817(Phone) 732-572-0500 
If you or anyone you know needs an updated Will, Power of Attorney or Living Will, please have them fill out our confidential interview from and schedule a consult.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave
Edison, NJ  08817
(Phone) 732-572-0500 (Fax) 732-572-0030
"CONFIDENTIAL WILL QUESTIONNAIRE"
         Please fill out completely and fax or mail back. This form is extremely important. Your accuracy and completeness in responding will help me best represent you. All sections and information must be filled out prior to sitting down with the attorney.
         Please be sure to check all appropriate boxes. If "NONE", please state "NONE". 
If "NOT APPLICABLE", please state "N/A" or none.
PLEASE PRINT CLEARLY
1. Your Full Name: _______________________________

2.    IF MARRIED OR SEPARATED, complete (a) and (b) below:
(a) Spouse's Full Name:

________________________             
First                                Last

3.  Your Street Address: _________________________     

City ________________ State ____  Zip Code ______________
             
4.    Telephone Numbers:                

Cell: _______________________________    ___________________
                                                                                      
Day: ____________________/Night: ________________________

5.    E-mail address: _________________________

6. Referred By: ___________________________
         If referred by a person, is this a client or attorney?  If you heard about the law office on the Internet, what search terms did you use?

7. Today's Date ____________________

       We recommend a Durable Power of Attorney in the event of your physical
or mental disability to help you with financial affairs? 
                                                                           Yes ________  No ________

        We recommend a Living Will telling hospitals and doctors not to prolong your life by artificial means, i.e. Terri Schiavo; Karen Quinlan?      
                                                                          Yes ________  No ________
Confidential Will Q                   
How can we help you? What are your questions/other important information?

______________________________________________________
[It is required by Court Rules that all pages be filled out in person's own handwriting prior to seeing the attorney]
8.    Your Marital Status:        [  ] Single        [  ]  Married         [  ]  Separated                       [  ] Divorced        [  ]  Widowed   [  ] Domestic Partner

9.  Your Day/Month  of birth:  ___________________   
10.  Spouse Day/Month of birth:  _________________   
11.  If you are the parent or legal guardian of a minor child or minor children, please check here.  [   ]
2.  ESTATE EXECUTOR
         The person charged with administering/Probating your estate, paying taxes and/or other debts, preserving, managing, and distributing estate assets and property is called an Executor. This person should be one in whom you have trust and confidence. Your SPOUSE is usually named as primary Executor, followed by the child who lives closest to your home.
         Please provide the following information about the person you wish to name to serve in this capacity.
1. PRIMARY Choice of Executor/Personal Representative in Power of Attorney:

Name: _________________     ______________________________
            First              Last

Relationship: _______________ Address: _________________

2. SECOND Choice of Executor/Personal Representative in Power of Attorney:
         This individual will serve in the event that the primary executor/personal representative is not alive at the time of your death, or is unable to serve.

Name: _________________________     _____________________
            First                     Last

Relationship: _______________  Address: ________________
   The two proposed Executors must be filled out prior to meeting the attorney. We do not recommend Joint Executors, which often cause conflicts and additional work for the Estate. It is best to select one primary person, then a secondary person. There is a reason why the car only has one steering wheel.

Asset Information- Must Be Completed - If none, write “none”

House/Real Estate Address  __________________________

Estimate Total Real Estate Value: ________ Approx mortgage _____

Bank Accounts, Stocks, CDs and Assets: __________________

Approximate Amount ____________________________

Direct Beneficiaries of Accounts - If none write "none" ________

Other Major Assets - If none, write "none" _______________

Approximate Life Insurance: ___________  Beneficiary _______

In the Will- Who do you want to get your assets:

Beneficiary (1) __________________ Relationship _______________

Beneficiary (2) _______________ Relationship _______________

Beneficiary (3) ___________ Relationship _______________
    It is required that assets and beneficiaries be filled out prior to seeing the attorney
Any Specific Bequests of Money and Property:
______________________________________________________

[  ] A. MARRIED PERSONS WITH CHILD(REN) OR GRANDCHILD(REN).
       Generally most married people provide that, upon their death, property will be distributed as follows:
         1. Your estate (all property and assets not owned jointly with another person) will be distributed to your surviving spouse.
         2. If your spouse predeceases you, then your estate will be divided in equal shares among all of your living children, If any child shall predecease you, then that child's share to their children (grandchildren).

Names of Children:  ________________________   

LIST THE NAMES AND AGES OF ALL CHILDREN EVEN IF THEY ARE OLDER THAN EIGHTEEN. IF NO CHILDREN, WRITE NONE. If no  minor children, skip page 5.

III. GUARDIAN(S) OF MINOR CHILD(REN) or Trustees of Trust
       [Skip this section if you have NO minor children and DO NOT want a trust. There are substantial additional fees for preparation of a Trust, minimum $2,500 for stand alone trusts]
       The surviving parent of a minor child is ordinarily entitled to be the GUARDIAN of that child. In the case of simultaneous death of you and your spouse, or if you are a single parent, you should appoint a Guardian for your minor child. It is advisable, prior to the completion of this Questionnaire, to make sure that your proposed Guardian(s) is (are) willing to serve as Guardian(s). In addition, the Guardian will also hold the monies for the minor children UNLESS you direct us otherwise. In your Will you can have any adult serve as Trustee of monies for minor children.
         Provide the following information about the person(s) you select to be Guardian(s)/Trustee(s). In the event my spouse predeceases me, I name as GUARDIAN(S)/ TRUSTEE(S):

1.  PRIMARY Choice of GUARDIAN / TRUSTEE:

Full Name: _______________________________________

Relationship: ______________________________________

2.   SECOND Choice of GUARDIAN / TRUSTEE:

Full Name: _______________________________________

Relationship: _____________________________________
[  ] B. MARRIED PERSONS WITH NO CHILD(REN) OR GRANDCHILD(REN).
       Generally most married people with no child(ren) or grandchild(ren) provide that upon their death their property will be distributed as follows:
1. Your estate (all property and assets not owned jointly with another person) will be distributed to your surviving spouse, but
2. If your spouse predeceases you, then your estate will be distributed to your living parent, or equally to your living parents. 
3. But should both of your parents predecease you, then your estate will distributed equally to your brothers and sisters or equally to the children of a predeceased brother or sister.
         Please check B above only if you wish your property distributed precisely and exactly as indicated in section B, 1 through 3, above.
   Additional information on Wills, Probate and Elder Law available at www.njlaws.com This form online at http://www.njlaws.com/will_questionnaire.html

[ ] C. DIVORCED OR WIDOWED PERSONS WITH CHILD(REN) OR GRANDCHILD(REN). Generally, most divorced or widowed persons with child(ren) or grandchild(ren) provide that upon their death property will be distributed as follows:  1. Your estate (all property and assets not owned jointly with another person) will be distributed in equal shares to all of your living child(ren).
         2. But if one or more of your children predeceases you, that deceased child's share will be distributed to his or her child(ren), your grandchild(ren) in equal shares
          [  ] D. ALTERNATE PLAN OF DISTRIBUTION - You may list specific gifts to individuals and/or divide your estate among several individuals by listing percentages to each, making sure that the percentages total 100%. You may add additional sheets if necessary or use the back of this form.  There are additional Will preparation fees if there are gifts, called specific bequests.
       Are there any beneficiaries with special needs, or receiving SSI or SDD? Please answer in detail
          ____________________________________
    Are you or any of your Beneficiaries  are not United States citizens? _______
If not US citizen, extra taxes apply.
Do you have any religious wishes on burial? ___
       PLEASE WRITE DOWN ANY QUESTIONS YOU HAVE HERE or anything else important that we should be aware. Use back of this page for additional important information:

____________________________________________________
ESTATE PLANNING
    Your estate may be subject to NJ Estate Taxation if the total of your assets exceeds $2,000,000.  If your assets exceed $2,000,000 and you desire estate planning to avoid or reduce your estate tax or require a Trust to protect a spouse, please advise Mr. Vercammen.  A Standard Will is not designed to address estate tax issues. We do not do Medicaid Nursing Home Planning.
                  WILLS:
T 1- Parents with minor children and trust for children                 ____________
T 2- Parents no spouse   ____________
T 3 Unmarried             ____________
T 4- Parents without trust   ____________
T 5- Spouse/ Children Trust if assets over $1 million?                  ____________

         PAYMENT WILL BE MADE BY:  (Please circle one)
Check, Credit Card (Visa, MasterCard, American Express) or Cash
Checks are payable to Vercammen PC
         Payment is required for Will, Power of Attorney and other document preparation at the first consult and prior to any documents being drafted. Minimum fee for Last Will and Testament preparation is $200 each. We charge a $150.00 consultation fee, which is credited to the preparation of the Will or other document. This $150.00 fee is non-refundable even if the documents are not prepared. If there are any changes to a draft Will, Power of Attorney, or other document, there will be a minimum charge of $75.00 per revision. The Will needs to be signed within 21 days of initial consult or an additional fee of $100.00 will be charged. Due to complexity and need to re-title assets, Fees for Trusts are minimum $2,500.

This form was filled out by:  _________________________
                                    sign name
 Copyright 2017 Vercammen Law