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 is a Central Jersey trial attorney who has published 130 articles in national and New Jersey publications. He was awarded the NJ State State Bar GP Solo Practitioner of the Year.

To schedule a confidential consultation, call or email us via www.njlaws.com/ContactKenV.htm

Kenneth Vercammen & Associates, P.C.
2053 Woodbridge Avenue - Edison, NJ 08817
(732) 572-0500
http://www.njlaws.com/

Thursday, November 17, 2016

NJ Estate Tax NJSA 54:38-1 Imposition of tax; amount.

NJ Estate Tax NJSA 54:38-1  Imposition of tax; amount.
 54:38-1  a.  In addition to the inheritance, succession or legacy taxes imposed by this State under authority of chapters 33 to 36 of this title (R.S.54:33-1 et seq.), or hereafter imposed under authority of any subsequent enactment, there is hereby imposed an estate or transfer tax:

(1)Upon the transfer of the estate of every resident decedent dying before January 1, 2002 which is subject to an estate tax payable to the United States under the provisions of the federal revenue act of one thousand nine hundred and twenty-six and the amendments thereof and supplements thereto or any other federal revenue act in effect as of the date of death of the decedent, the amount of which tax shall be the sum by which the maximum credit allowable against any federal estate tax payable to the United States under any federal revenue act on account of taxes paid to any state or territory of the United States or the District of Columbia, shall exceed the aggregate amount of all estate, inheritance, succession or legacy taxes actually paid to any state or territory of the United States or the District of Columbia, including inheritance, succession or legacy taxes actually paid this State, in respect to any property owned by such decedent or subject to such taxes as a part of or in connection with the estate; and

(2) (a)Upon the transfer of the estate of every resident decedent dying after December 31, 2001, but before January 1, 2017, which would have been subject to an estate tax payable to the United States under the provisions of the federal Internal Revenue Code of 1986 (26 U.S.C. s.1 et seq.) in effect on December 31, 2001, the amount of which tax shall be, at the election of the person or corporation liable for the payment of the tax under this chapter, either

(i)the maximum credit that would have been allowable under the provisions of that federal Internal Revenue Code in effect on that date against the federal estate tax that would have been payable under the provisions of that federal Internal Revenue Code in effect on that date on account of taxes paid to any state or territory of the United States or the District of Columbia, or

(ii)determined pursuant to the simplified tax system as may be prescribed by the Director of the Division of Taxation in the Department of the Treasury to produce a liability similar to the liability determined pursuant to clause (i) of this paragraph reduced pursuant to paragraph (b) of this subsection.

(b)The amount of tax liability determined pursuant to subparagraph (a) of this paragraph shall be reduced by the aggregate amount of all estate, inheritance, succession or legacy taxes actually paid to any state or territory of the United States or the District of Columbia, including inheritance, succession or legacy taxes actually paid this State, in respect to any property owned by such decedent or subject to such taxes as a part of or in connection with the estate; provided however, that the amount of the reduction shall not exceed the proportion of the tax otherwise due under this subsection that the amount of the estates's property subject to tax by other jurisdictions bears to the entire estate taxable under this chapter.

(3) (a) Upon the transfer of the estate of each resident decedent dying on or after January 1, 2017, whether or not subject to an estate tax payable to the United States under the provisions of the federal Internal Revenue Code (26 U.S.C. s.1 et seq.), the amount of the taxable estate, determined pursuant to section 2051 of the federal Internal Revenue Code (26 U.S.C. s.2051), shall be subject to tax pursuant to the following schedule:



On any amount up to $100,000 . ................................................0.0%
On any amount in excess of $100,000, up to $150,000  . . . . .0.8% of the excess over $100,000     
On any amount in excess of $150,000, up to $200,000. . . . . . .$400 plus 1.6% of the excess over $150,000
On any amount in excess of $200,000, up to $300,000. . . . . . . . . . .$1,200 plus 2.4% of the excess over $200,000
On any amount in excess of $300,000, up to $500,000. . . . . . . . . . . . . . . . $3,600 plus 3.2% of the excess over $300,000
On any amount in excess of $500,000, up to $700,000. . . . . . . . . . . . . . . .$10,000 plus 4.0% of the excess over $500,000
On any amount in excess of $700,000, up to $900,000. . . . . . . . . . . . . . . . $18,000 plus 4.8% of the excess over $700,000
On any amount in excess of $900,000, up to $1,100,000. . . . . . . . . .. $27,600 plus 5.6% of the excess over $900,000
On any amount in excess of $1,100,000, up to $1,600,000. . . . .$38,800 plus 6.4% of the excess over $1,100,000
On any amount in excess of $1,600,000, up to $2,100,000. . . . . $70,800 plus 7.2% of the excess over $1,600,000
On any amount in excess of $2,100,000, up to $2,600,000. . . . . $106,800 plus 8.0% of the excess over $2,100,000
On any amount in excess of $2,600,000, up to $3,100,000. . . . $146,800 plus 8.8% of the excess over $2,600,000
On any amount in excess of $3,100,000, up to $3,600,000. . . . . $190,800 plus 9.6% of the excess over $3,100,000
On any amount in excess of $3,600,000, up to $4,100,000. . . . . $238,800 plus 10.4% of the excess over $3,600,000
On any amount in excess of $4,100,000, up to $5,100,000. . . . . $290,800 plus 11.2% of the excess over $4,100,000
On any amount in excess of $5,100,000, up to $6,100,000 . . . . $402,800 plus 12.0% of the excess over $5,100,000
On any amount in excess of $6,100,000, up to $7,100,000 . . . . . $522,800 plus 12.8% of the excess over $6,100,000
On any amount in excess of $7,100,000, up to $8,100,000 . . . . . $650,800 plus 13.6% of the excess over $7,100,000
On any amount in excess of $8,100,000, up to $9,100,000 . . . . .  $786,800 plus 14.4% of the excess over $8,100,000
On any amount in excess of $9,100,000, up to $10,100,000 . . . . $930,800 plus 15.2% of the excess over $9,100,000
On any amount in excess of $10,100,000. . . . . . . . . . . . . . . . . . . $1,082,800 plus 16.0% of the excess over $10,100,000


(b)A credit shall be allowed against the tax imposed pursuant to subparagraph (a) of this paragraph equal to the amount of tax which would be determined by subparagraph (a) of this paragraph if the amount of the taxable estate were equal to the exclusion amount.

For the transfer of the estate of each resident decedent dying on or after January 1, 2017, but before January 1, 2018, the exclusion amount is $2,000,000.

(c)The amount of tax liability of a resident decedent determined pursuant to subparagraphs (a) and (b) of this paragraph shall be reduced by the aggregate amount of all estate, inheritance, succession or legacy taxes actually paid to any state of the United States, including inheritance taxes actually paid this State, in respect to any property owned by that decedent or subject to those taxes as a part of or in connection with the estate; provided however, that the amount of the reduction shall not exceed the proportion of the tax otherwise due under this subsection that the amount of the estate's property subject to tax by other jurisdictions bears to the entire estate taxable under this chapter.

(4)For the transfer of the estate of each resident decedent dying on or after January 1, 2018, there shall be no tax imposed.

b. (1) In the case of the estate of a decedent dying before January 1, 2002 where no inheritance, succession or legacy tax is due this State under the provisions of chapters 33 to 36 of this title or under authority of any subsequent enactment imposing taxes of a similar nature, but an estate tax is due the United States under the provisions of any federal revenue act in effect as of the date of death, wherein provision is made for a credit on account of taxes paid the several states or territories of the United States, or the District of Columbia, the tax imposed by this chapter shall be the maximum amount of such credit less the aggregate amount of such estate, inheritance, succession or legacy taxes actually paid to any state or territory of the United States or the District of Columbia.

(2)In the case of the estate of a decedent dying after December 31, 2001, but before January 1, 2017, where no inheritance, succession or legacy tax is due this State under the provisions of chapters 33 to 36 of this title or under authority of any subsequent enactment imposing taxes of a similar nature, the tax imposed by this chapter shall be determined pursuant to paragraph (2) of subsection a. of this section.

(3)In the case of the estate of a decedent dying on or after January 1, 2017 the tax imposed by this chapter shall be determined pursuant to paragraphs (3) and (4) of subsection a. of this section.

c.For the purposes of this section, a "simplified tax system" to produce a liability similar to the liability determined pursuant to clause (i) of subparagraph (a) of paragraph (2) of subsection a. of this section is a tax system that is based upon the $675,000 unified estate and gift tax applicable exclusion amount in effect under the provisions of the federal Internal Revenue Code of 1986 (26 U.S.C. s.1 et seq.) in effect on December 31, 2001, and results in general in the determination of a similar amount of tax but which will enable the person or corporation liable for the payment of the tax to calculate an amount of tax notwithstanding the lack or paucity of information for compliance due to such factors as the absence of an estate valuation made for federal estate tax purposes, the absence of a measure of the impact of gifts made during the lifetime of the decedent in the absence of federal gift tax information, and any other information compliance problems as the director determines are the result of the phased repeal of the federal estate tax.

amended 2002, c.31, s.1; 2016, c.57, s.7.
 
54:38-2.  Additional tax in certain cases    If subsequent to the determination of the tax due under this chapter an additional or increased estate tax shall become payable to the United States by  reason of any redetermination, or additional or corrected assessment, as to a  portion of which the estate is entitled to a credit on account of estate,  inheritance, succession or legacy taxes paid to any state or territory of the  United States or the District of Columbia, then an additional estate tax shall  be due and payable to this state to be assessed in the same manner as provided  by section  54:38-1  of this title.

Thursday, November 10, 2016

Metuchen Library Wills, Estate Planning & Probate Seminar

Wills, Estate Planning & Probate Seminar
November 14 at 7:00pm Free community program
480 Middlesex Ave. Metuchen, NJ 08840
   Seniors invited
WILLS & ESTATE ADMINISTRATION-PROTECT YOUR
FAMILY AND MAKE PLANNING EASY
      You do not have to be a Metuchen resident to attend but registration requested

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

       The NJ Probate Law made a number of substantial changes in Probate and the administration of estates and trusts in New Jersey. This seminar will also help attorneys better serve their clients.
       Main Topics:
1. The New Probate Law and preparation of Wills              
2.  Increase in Federal Estate and Gift Tax exemption
3. Major changes to NJ Estate Tax & changes to taxes on pensions
4. Power of Attorney                       
5.  Living Will                                           
6.  Administering the Estate & Probate

 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.

 (732) 632-8526
http://www.metuchenlibrary.org


Tuesday, November 08, 2016

Some retirement funds subject to NJ Estate Tax Estate of Smith v. Director, N.J. Div. of Taxation

Some retirement funds subject to NJ Estate Tax
Estate of Smith v. Director, N.J. Div. of Taxation

No. 015163-2013
Sept. 28, 2016 (Date Decided)
Judge Brennan
FOR PLAINTIFF: Matthew E. Moloshok (Hellring Lindeman Goldstein & Siegal, LLP, attorneys; David N. Narciso, on the briefs).
FOR DEFENDANT: Heather Anderson (Christopher S. Porrino, Attorney General of New Jersey, attorney).
Plaintiff, Estate of Phillip J. Smith, Deceased, Judith Heimer, Executor, challenged defendant, Director, Division of Taxation's imposition of inheritance tax on New Jersey's Alternate Benefit Program ("ABP") retirement benefits.
Phillip J. Smith died a widower on Oct. 5, 2010. His sister-in-law is the executrix of his estate and its primary beneficiary. At the time of his death, Smith's assets included $576,759.00 in ABP retirement benefits. Estate filed a New Jersey transfer inheritance tax return, in which it listed the ABP funds as a tax-exempt state pension. On audit, the Director determined that ABP proceeds are subject to New Jersey inheritance tax pursuant to N.J.S.A. 54:34-1(c). The Director issued an assessment of $92,282.00 in additional inheritance tax.
Estate argued that all state-sponsored and state-administered pension plan entitlements are not subject to inheritance tax and therefore the decedent's ABP funds are tax exempt.
The Director argued that all profit sharing and retirement plans, both public and private, are subject to inheritance tax unless the Legislature has provided an exemption. Although ABP was enacted in 1967 and amended in 1969, it was not included in the June 26, 1969, amendments to the statutory tax exemption clauses for the defined benefit retirement programs, TPAF, PERS, PFRS and SPRS.
Estate advanced that when the state's pension laws are read in pari materia, they reflect the legislative intent that all state-sponsored pension plans are not subject to inheritance tax. The court disagreed. The Legislature provided limited exemptions from the inheritance tax to the defined benefit retirement programs.
Estate argued that imposing inheritance tax on ABP benefits, and not on the defined benefit retirement programs, violates the Equal Protection Clause of the Fourteenth Amendment, as well as the "unalienable rights" provision of the New Jersey Constitution. However, the rational basis for not enacting tax exemptions for the ABP is found in the vesting differences between the two retirement systems. It is the ABP participant's ability and flexibility to move between public and private employment in higher education, both within and beyond the state, that distinguishes it from state's defined benefit programs.
New Jersey's ABP retirement proceeds are subject to New Jersey Inheritance Tax. The Legislature intended to provide tax exemptions only to the state's defined benefit retirement programs, PERS, TPAF, PFRS, SPRS and JRS, as is reflected by the specific exemption language in those statutes.
source http://www.njlawjournal.com/id=1202769837808/Estate-of-Smith-v-Director-NJ-Div-of-Taxation?slreturn=20161008205152

Monday, September 26, 2016

Chancery filing fee 22A:2-12. Payment of fees in Chancery Division of Superio Court upon filing of first paper.

Chancery filing fee
22A:2-12. Payment of fees in Chancery Division of Superio Court upon filing of first paper.
     22A:2-12. Payment of fees in Chancery Division of Superior Court upon filing of first paper. Upon the filing of the first paper in any action or proceeding in the Chancery Division of the Superior Court, there shall be paid to the clerk of the court, for the use of the State, the following fees, which, except as hereinafter provided, shall constitute the entire fees to be collected by the clerk for the use of the State, down to the final disposition of the cause:

     Receivership and partition, $200.00.

     All other actions and proceedings except in probate cases and actions and proceedings for divorce or dissolution of a civil union, $200.00.

     Actions and proceedings for divorce or dissolution of a civil union, $250.00, $25.00 of which shall be forwarded by the Clerk of the Superior Court as provided in section 2 of P.L.1993, c.188 (C.52:27D-43.24a).

     Any person filing a motion in any action or proceeding shall pay to the clerk $30.00.
Payable, Treasurer, State of NJ if not a Probate matter

Superior Court, Law Division, Chancery Part General Equity
Fee SubjectFeeAuthority
Filing Complaint$250.00N.J.S.A. 22A:2-12 and -13
Filing Answer$175.00N.J.S.A. 22A:2-12 and -13
Order to Show Cause (General Equity and Foreclosure)$50.00N.J.S.A. 22A:2-12 and -13
Filing Motion$50.00N.J.S.A. 22A:2-12 and -13

Sunday, September 04, 2016

GUARDIANSHIP OF INCAPACITATED PERSONS - TEMPORARY RELAXATION OF SURROGATES' NOTICING REQUIREMENTS OF AMENDED RULE 4:86-6(f)(5)

GUARDIANSHIP OF INCAPACITATED PERSONS - TEMPORARY RELAXATION OF
SURROGATES' NOTICING REQUIREMENTS OF AMENDED RULE 4:86-6(f)(5)
As part of its August 1, 2016 omnibus rule amendment order, the Supreme Court
adopted a number of amendments to Rule 4:86 ("Action for Guardianship of an
Incapacitated Adult or for the Appointment of a Conservator") to be effective September
1, 2016, including adoption of a new paragraph setting out noticing requirements for the
Surrogates (Rule 4:86-6(f)(5)). This Notice is to advise that the Court has extended the
effective date of that specific paragraph - Rule 4:86-6(f)(5) ("Hearing; Judgment -Duties
of Surrogate") -to March 1, 2017. The reason for that extension is to allow for
the completion of the systems reprogramming necessary to that noticing. Attached is
the Court's August 25, 2016 rule relaxation order extending that effective date. Note
that all of the remaining August 1, 2016 amendments to Rule 4:86 will retain the

September 1, 2016 effective date.

ABA Elder Law Committee - Fall 2016 Report ABA SOLO, SMALL FIRM AND GENERAL PRACTICE DIVISION COUNCIL AGENDA REPORT FORM – FALL 2016

ABA Elder Law Committee - Fall 2016 Report

ABA SOLO, SMALL FIRM AND GENERAL PRACTICE DIVISION

COUNCIL AGENDA REPORT FORM – FALL 2016


Division Name and Number: Division: 3 – Practice Specialty                                                                        

Division Director Name: Kari Petrasek

Group Name: Family Law Group         

Reporting Board or Committee: ABA Elder Law Committee

Completed By: Kenneth Vercammen Co-Chair, Edison, NJ

1.   What communications have you had with your committee since last report? (e.g. conference call, meetings, publications, use of discussion lists, etc.)
-Email to all members with copy of Business plan
-Helped publicize Divisions new book “Wills and Estate Administration Practice”  approx 240 pages to help raise revenue for section
-Proposed Meeting at New York Annual meeting and possibly Miami Mid year

-Proposed Brown Bag webinar and waiting for response
-Submitted short articles to Jeff Allen for GP Solo eReport
“Scheduling Estate Planning interviews” and also “Handling Estate Planning Appointments and important items to discuss with Clients”

2. Please describe the substance of the activities set forth in number 1 above.
Please see number 1 above.
Next ABA Aging and Law Networking  conference calls
September 12, 2016
December 12, 2016
March 13, 2017
June 12, 2017


3-Please list your entity's activities and programs since last report. - Revised book “Wills and Estate Administration Practice”

4- Where you are in completing your annual planned activities? --Kenneth Vercammen revised and expanded the text new book for Solo Division approved by Pub Board called “Wills and Estate Administration Practice”.

- Requested a  Brown Bag seminar on Estate Planning
   
5-What is the status on any CLE, publications, articles, etc.? See above
-Continue to submit articles to Jeff Allen for Solo EReport

6. What plans do you have for the rest of the year? Describe any future activities. -An email will be sent to all Committee members to invite them to participate in the September Aging call September 12, 2016
December 12, 2016
March 13, 2017
June 12, 2017

All at 4:00 PM eastern time

Please have anyone wanting to be on the email list about the calls, email David Godfrey asking to be added to the Law and Aging Networking call list. 
 David Godfrey
Senior Attorney
American Bar Association
Commission on Law and Aging
1050 Connecticut Ave NW #400
Washington, DC 20036
202-662-8694


7- Please state how your entity’s activities conform to the Goals of the Division’s Long Range Plan. Articles and webinar

8- Report on anything else: Promote recent ABA Book: “Smart Marketing For the Small Firm Lawyer” from the American Bar Association.
    Author:  Kenneth A Vercammen
Sponsor(s):  Solo, Small Firm and General Practice Division
Publisher(s):  ABA Book Publishing 



Sunday, August 28, 2016

New rule 4:86-9. Guardians for Incapacitated Persons Under Uniform Veterans Guardianship Law Complaint for Appointment. An action for the appointment of a guardian under

4:86-9. Guardians for Incapacitated Persons Under Uniform Veterans Guardianship Law
Complaint for Appointment. An action for the appointment of a guardian under
NJS.A. 3B:13-l et seq. for [a ward] an alleged [to be a] incapacitated person shall be brought in
the Superior Court by any person entitled to priority of appointment. If there is no person so
entitled or if the person so entitled fails or refuses to commence the action within 30 days after
the mailing of notice by a federal agency to the last known address of such person entitled to
priority of appointment, indicating the necessity for the appointment, the action may be brought
by any person residing in this State, acting on the [ward's] alleged incapacitated person's behalf.
.(hl Complaint. The complaint shall state (1) the name, age and place of residence of
the [ ward] alleged incapacitated person; (2) the name and place of residence of the nearest
relative, if known; (3) the name and address of the person or institution, if any, having custody of
the [ ward] alleged incapacitated person; ( 4) that such [ ward] alleged incapacitated person is
entitled to receive money payable by or through a federal agency; (5) the amount of money due
and the amount of probable future payments; and (6) that the [ward] alleged incapacitated person
has been rated [a] an incapacitated person on examination by a federal agency in accordance
with the laws regulating the same .
.(fl Proof of Necessity for Guardian of [Mentally) Incapacitated Person. A certificate
by the chief officer, or his or her representative, stating the fact that the [ward] alleged
incapacitated person has been rated [ a mentally] an incapacitated person by a federal agency on
examination in accordance with the laws and ~egula'.ticins gbveming such agency and that
appointment is a condition precedent to the paymentofmoney due the [ward] alleged
incapacitated person by such agency shall be prima facie evidence of the necessity for making an
appointment under this rule.
-88-
@ Determination of [Mental] Incapacity. [Mental i]Incapacity may be determined
on the certificates, without other evidence, of two medical officers of the military service, or of a
federal agency, certifying that by reason of [mental] incapacity the [ward] alleged incapacitated
person is incapable of managing his or her property, or certifying to such other facts as shall
satisfy the court as to such [mental] incapacity.
W Appointment of Guardian; Bond. Upon proof of notice duly given and a
determination of [ mental] incapacity, the court may appoint a proper person to be the guardian
and fix the amount of the bond. The bond shall be in an amount not less than that which will be
due or become payable to the [ward] incapacitated person in the ensuing year. The court may
from time to time require additional security. Before letters of guardianship shall issue, the
guardian shall accept the appointment in accordance with R. 4:96-1.
ill Termination of Guardianship When [Ward) Incapacitated Person Regains
[Mental] Capacity. If the court has appointed a guardian for the estate of [a ward] an
incapacitated person, it may subsequently, on due notice, declare the [ward] incapacitated person
to have regained [mental] capacity on proof of a finding and determination to that effect by the
medical authorities of the military service or federal agency or based on such other facts as shall
satisfy the court as to the [mental] capacity of the [ward) incapacitated person. The court may
thereupon discharge the guardian without further proceedings, subject to the settlement of his or
her account.
_(g} Complaint in Action to Have Guardian Receive Additional Personalty. The
complaint in an action to authorize the guardian, pursuant to law, to receive personal property
from any source other than the United States Government shall set forth the amount of such
-89-
property and the name and address of the person or institution having actual custody of the
[ ward] incapacitated person .
.{hl ... no change.
Note: Source-R.R. 4:102-9(a) (b) (c) (d) (e) (f) (g) (h), 4:103-3 (second sentence).
Paragraph (a) amended July 22, 1983 to be effective September 12, 1983; paragraph (a) amended
July 26, 1984 to be effective September 10, 1984; paragraphs (a) through (f) and (h) of former R.
4:83-9 amended and rule redesignated June 29, 1990 to be effective September 4, 1990; caption
amended, paragraphs (a) and (b) amended, paragraphs (c) and (d) captions and text amended,
paragraph ( e) amended, and paragraph (f) caption and text amended July 12, 2002 to be effective
September 3, 2002; paragraphs (a), (b), (e), and (g) amended, and paragraphs (c), (d), and (f)
caption and text amended August 1, 2016 to be effective September 1, 2016.
'.

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