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/

Tuesday, December 12, 2017

Wills and Estate Planning for Veterans and their Families January 3, 2018 at 7PM.

January 3, 2018 at 7PM.
   American Legion Post 306, 707 Legion Way, Middlesex NJ 08846

WILLS & ESTATE ADMINISTRATION-PROTECT YOUR
FAMILY AND MAKE PLANNING EASY
    Members of any American Legion, Sons of American Legion SOL and Auxiliary can attend. Just bring your membership card and click the Facebook link “going”.

SPEAKER: Kenneth Vercammen, Esq. Edison, NJ (Author- Wills and Estate Administration by the ABA)
Member Edison American Legion SOL and Life Member, VFW Auxiliary
       The NJ Probate Law made a number of substantial changes in Probate and the administration of estates and trusts in New Jersey.

Main Topics:
1.   2018 changes to NJ Estate Tax   
2. 2018 changes in Federal Estate and Gift Tax 
3. The New Probate Law and preparation of Wills    
4. Power of Attorney  
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.

https://www.facebook.com/events/1225839214182956/

Sunday, December 10, 2017

Collecting an Out of State Judgment

Collecting an Out of State Judgment 
Article 4 of the U.S. Constitution provides that a judgment awarded in a court of one state is entitled to full faith and credit in the courts of another state. A judgment from another state can be enforced by docketing it with the Clerk of the Superior Court in Trenton. It will then be a lien on any real estate owned by the debtor in New Jersey and other collection efforts must be made through the Sheriff’s Office in the county where the debtor has assets. Contact the Superior Court Clerk’s Office at 609-421-6100 for more information. 
source https://www.judiciary.state.nj.us/forms/10282_collect_money_jdgmnt.pdf


The Uniform Enforcement of Foreign Judgments Act (N.J.S.A. 2A:49A-25 et seq.) permits a judgment, decree, or order of the United States or of any other Court which is entitled to full faith and credit in this State to be filed with the Clerk of the Superior Court of New Jersey. Pursuant to Enron (Thrace) Exploration & Production v. Clapp, 378 N.J.Super. 8 (App. Div. 2005), foreign country money judgments are enforceable in the same manner as the judgment of a sister state which is entitled to full faith and credit, provided that the provisions of the Uniform Foreign Country Money Judgments Recognition Act, N.J.S.A. 2A:49A- 16 to 24, are met. The Clerk shall treat the foreign judgment in the same manner as a judgment of the Superior Court of this State. Upon recording, the Clerk will issue a notice to the defendant providing 14 days during which the defendant may file an objection to the judgment. No execution of process can occur during that 14-day period. Any questions concerning the filing of foreign judgments should be directed to the Superior Court Clerk’s Office at (609) 421-6100. 
Note: Pursuant to New Jersey Court Rule. 1:21, an attorney submitting an affidavit or certification in support of a foreign judgment must be licensed and/or eligible to practice law in the State of New Jersey and in good standing. 

source: http://www.uniformlaws.org/shared/docs/registration%20of%20foreign%20judgments/NJ%20Foreign%20Judgment%20Registration%20Procedure.pdf

2018 Federal Estate Tax amount is $5,600,000, meaning your estate is not subject to Federal Estate Tax if it is under $5,600,000.

2018 Federal Estate Tax amount is $5,600,000, meaning your estate is not subject to Federal Estate Tax if it is under $5,600,000.
   In 2018, the annual gift tax exclusion is $15,000.
The basic exclusion amount (or applicable exclusion amount in years prior to 2011) for gifts is $1,000,000 (2010), $5,000,000 (2011), $5,120,000 (2012), $5,250,000 (2013), $5,340,000 (2014), $5,430,000 (2015), $5,450,000 (2016), $5,490,000 (2017), and $5,600,000 (2018).


ESTATE RECOVERY OF CORRECTLY PAID MEDICAID 10:49-14.1

ESTATE RECOVERY OF CORRECTLY PAID MEDICAID
10:49-14.1 Recovery of payments correctly made
(a) Correctly paid benefits shall only be recoverable from the estate of an individual who was 65 years of age or older when the individual received medical assistance if:
1. The individual leaves no surviving spouse;
2. For estates of individuals who died between February 1, 1984 and October 20, 1992, the individual left no surviving child;
3. For estates of individuals who died on or after October 21, 1992, the individual leaves no surviving child who is under the age of 21 or any surviving blind or permanently and totally disabled children;
4. The amount to be recovered is in excess of $ 500.00; and 5. The gross estate is in excess of $ 3,000.
(b) Paragraphs (a)4 and 5 above shall apply to recoveries from the estates of individuals who died on or after July 20, 1981, but prior to December 22, 1995.
(c) For estates of individuals who died on or after April 1, 1995, in addition to the recoveries authorized under (a) and (b) above, any Medicaid payments correctly made on or after October 1, 1993, on behalf of individuals who received services on or after age 55 but prior to age 65, are recoverable from the estates of those individuals, subject to the conditions set forth in (a)1, 3, 4 and 5 and (b) above.
(d) Effective for estates created on or after October 4, 1999, the Division shall file any claim or lien against an estate under this section within 90 days after receiving actual written notice from the personal representative of the estate or any other interested party of the death of the Medicaid beneficiary.
(e) For estates of individuals who died on or after December 22, 1995, Medicaid claims under this section shall be deemed preferred claims, with a priority equivalent to that under subsection c. of N.J.S.A. 3B:22-2, that is, debts and taxes with preference under Federal or State law.
(f) The personal representative of the estate of a deceased Medicaid beneficiary or any other interested party, upon request to the Division, may obtain a "payoff statement" on the amount due under the claim, if that information is available to the Division at the time the request is received.
(g) Effective for estates pending on or created after October 4, 1999, if a family member of a deceased Medicaid beneficiary has, prior to the beneficiary's death, continuously resided in a home owned by the beneficiary at the time of the beneficiary's death, and that home was the beneficiary's primary residence, and was and remains the family member's primary residence, the Division may record a lien against the property, but will not enforce the lien until the property is voluntarily sold, or the resident family member either dies or vacates the property.
(h) For estates of individuals who died on or after October 1, 1993, which are subject to a recovery claim under this section which was either pending on or initiated after March 1,
Page 2
1995, the estate representative may apply to the Division for a waiver or compromise of the claim based upon grounds of undue hardship, subject to the following policies and procedures:
1. Undue hardship can be demonstrated only if the estate subject to recovery is or would become the sole income-producing asset of the survivors, and pursuit of recovery is likely to result in one or more of those survivors becoming eligible for public assistance and/or Medicaid benefits.
2. There shall be a rebuttable presumption that no undue hardship exists if the hardship resulted from estate planning methods under which assets were divested in order to avoid estate recovery.
3. Upon receipt of written notice that the estate is subject to a recovery claim by the Division, the estate representative shall have 20 days from the date of receipt of the notice to file a request for a waiver or compromise of the Division's claim based upon undue hardship, together with evidence in support of the request. If that request is not received by the Division within the time limit specified, the Division shall not grant a waiver or compromise based upon undue hardship. Upon receipt of a timely request, the Division shall evaluate the request and the evidence submitted, and shall notify the applicant in writing of its decision within 45 days from the date that the request was received. If the estate representative wishes to contest the Division's decision, a written request for a hearing shall be submitted to the Division within 20 days from the date of receipt of that decision, in accordance with the provisions of N.J.A.C. 10:49-10. This request shall be forwarded by the Division to the Office of Administrative Law (OAL), which shall notify the parties of the hearing date and venue, and shall provide a description of the hearing process. Subsequent to the hearing, the formal decision of the OAL shall include a description of the process leading to the final agency decision and the appeal rights available to both parties.
(i) The Division may elect not to pursue a claim under this section against the estate of an individual who died on or after December 22, 1995, if it determines, in its sole discretion, that to do so would not be cost-effective.
(j) For all estate recoveries pending on or initiated after October 4, 1999, no lien of any kind, inchoate or otherwise, and no right of recovery can either exist or be pursued until all of the conditions set forth in N.J.S.A. 30:4D-7.2a are met, including the absence of any surviving spouse or of any minor, blind, or permanently and totally disabled children.
(k) For all estate recoveries pending on or initiated on or after October 4, 1999, even when the statutory conditions for lien filing and recovery are met, recovery shall not be pursued against property held by any bona fide purchaser who has paid fair market value for the property, but shall be sought from the estate.
(l) For purposes of this section, the term "estate" with respect to a deceased Medicaid beneficiary shall include:
1. All real and personal property and other assets included within the individual's estate, as defined in N.J.S.A. 3B:1-1; and
2. For individuals who died on or after April 1, 1995, the term "estate" shall also include any other real and personal property and other assets in which the Medicaid beneficiary had any legal title or interest at the time of death, to the extent of that interest, including assets conveyed to a survivor, heir or assign of the beneficiary through joint tenancy, tenancy in common, survivorship, life estate, living trust or other arrangement, as well as any proceeds from the sale of any such property which remain in the estate of the survivor, heir or assign of the beneficiary, to the extent of the beneficiary's interest;
Page 3
i. Effective for future estates or estate recoveries pending on or after October 4, 1999, for purposes of this subsection, the term "life estate" shall mean a life estate created upon the death of a beneficiary;
ii. Effective for future estates or estate recoveries pending on or after October 4, 1999, for purposes of this subsection, the term "other arrangement" shall include, but not be limited to, any trust or annuity in which the beneficiary had an interest at the time of death, including a trust or annuity established by a third party, subject to the exclusions discussed in (n) below.
(m) Any lien filed on or after October 4, 1999 against an estate as described in (l)2 above shall describe the extent of the deceased Medicaid beneficiary's interest covered by the lien, if known to the Division at the time the lien is filed. For example, if a deceased Medicaid beneficiary at the time of his death owned real property as a tenant-in-common with another individual, the lien should state that it encumbers only 50 percent of the equity in the real property. If the deceased Medicaid beneficiary held a tenancy-by-the-entirety or joint tenancy with a right of survivorship, then the lien shall state that it encumbers all of the property. If the Division is not aware of the extent of the beneficiary's interest at the time that the lien is filed, the full amount of the Division's claim shall be listed on the lien.
(n) For purposes of this section, for future estates or estates pending on or after October 4, 1999, the term "estate" shall not include:
1. A life estate in which the beneficiary held an interest during his or her lifetime, but which expired upon the Medicaid beneficiary's death;
2. An inter vivos trust established by a third party for the benefit of the now-deceased Medicaid beneficiary, provided that:
i. The trust is a discretionary trust, constructed in such a way that the Medicaid beneficiary could not compel distributions from the trust; and
ii. The trust contains no assets in which the Medicaid beneficiary held any interest within either five years prior to applying for Medicaid benefits, or five years prior to the Medicaid beneficiary's death; or
3. A testamentary trust established by a third party (including the spouse of the now- deceased Medicaid beneficiary) for the benefit of the now-deceased Medicaid beneficiary, provided that:
i. The trust is a discretionary trust, constructed in such a way that the Medicaid beneficiary could not compel distributions from the trust; and
ii. The trust contains no assets in which the Medicaid beneficiary held any interest within either five years prior to applying for Medicaid benefits, or five years prior to the beneficiary's death. Assets of the community spouse, which formed a part of the community spouse resource allowance, shall not be considered assets of the Medicaid beneficiary. Any assets of the community spouse other than those that formed part of the community spouse resource allowance shall be considered assets of the Medicaid beneficiary if acquired from the Medicaid beneficiary within five years prior to the date of application for Medicaid benefits or five years prior to the date of death of the Medicaid beneficiary.
The New Jersey Medicaid Program and Estate Recovery-What You Should Know
What is Estate Recovery?
Under federal and New Jersey law, the Division of Medical Assistance and Health Services (DMAHS) is required to recover funds from the estates of certain deceased medical assistance clients or former clients for all payments provided through the Medicaid program for services received on or after age 55.
Why Estate Recovery?
The State pursues recovery from estates to supplement funds available for medical assistance programs and limit the burden upon taxpayers caused by rising medical costs. Funds recovered help provide assistance to others in need.
Who is Affected?
The estates of clients or former clients who were 55 years of age or older at the time they received services may be affected.
Will the State Seek Recovery Immediately Upon Death?
Yes, if the deceased has no surviving spouse and has no surviving child under age 21 and no surviving child who is blind or permanently and totally disabled. The only time that recovery will not be pursued is:
1. 2.
3.
If it would not be cost-effective to do so; or
If property in the estate is the sole source of income for one or more of the survivors and pursuit of recovery is likely to result in one or more of those survivors becoming eligible for public assistance and/or Medicaid benefits; or
If a family member of a deceased Medicaid client has, prior to the client’s death, continuously resided in a home owned by the client at the time of the client’s death, and that home was the client’s primary residence, and was, and remains, the family member’s primary residence, the Division may record a lien against the property, but will not enforce the lien until the property is voluntary sold, or the resident family member either dies or vacates the property.
When will the State not seek recovery immediately upon death?
The State will not seek recovery if there is a surviving spouse or a surviving child who is under the age of 21, or is blind or permanently and totally disabled. In that case, repayment would be postponed until:
1.   The child reached the age of 21, or
2.   The time of the spouse or child’s death.
When any of these exceptions to DMAHS’ right to recover from an estate no longer apply (i.e., as a result of the death of a surviving spouse, attainment of age 21 by a surviving child, and/or death of a blind or permanently and totally disabled child), DMAHS has a right to recover from any remaining estate assets at that time.
What is an Estate?
An estate includes any property that belonged to the deceased at the time of death. By law, estates include property such as the decedent’s home or share of a home, bank accounts (whether solely or jointly held), trusts and annuities, stocks and bonds, and any other real or personal property. It is important to understand that even though the deceased’s share of property may pass to the survivor(s), it continues to be considered as part of the estate for New Jersey Medicaid recovery purposes.
What About Life Insurance Policies?
Proceeds from life insurance policies are considered the assets of the named beneficiaries. Proceeds will be considered recoverable only when they are paid to the client’s estate as the named beneficiary or as a default beneficiary when another named beneficiary predeceases (dies before or at the same time as) the client.
What About Annuities ?
Annuities, which are determined not to be subject to asset liquidation prior to eligibility, must name the State of New Jersey as the remainder beneficiary in the first/primary position for the total amount of medical assistance paid on their behalf at any age. In the case where there is a community spouse and/or a minor or disabled child, the State must be named in the second/secondary position as remainder beneficiary. The State or its eligibility agencies shall require verification of the State being irrevocably named as the remainder beneficiary in the correct position. As the beneficiary of the annuity the State is paid any remaining income/principal upon the death of the client per the primary or secondary terms of the annuity contract.
What About Burial Trusts?
Under New Jersey law, P.L. 1999 Chapter 193, funeral directors and insurers issuing policies covering funeral expenses are required to forward to DMAHS any dollars remaining in a Medicaid client’s irrevocable funeral trust fund or burial insurance policy after reasonable funeral expenses have been paid, but only if the deceased was receiving Medicaid or public assistance benefits at the time of death.
What About Medicare Cost-Sharing Benefits?
Effective January 1, 2010, Medicare cost-sharing benefits paid by Medicaid under the Medicare Savings Programs are not subject to estate recovery.
What Should I Know About Medicaid Liens? Will the Medicaid Program File a Lien Against My Home and Property?
A Medicaid lien is a claim placed against a deceased person’s property to ensure that the estate pays a debt.
When you apply for Medicaid, a lien is not filed against your property. A lien is placed on property after the death of a Medicaid client or former client who received services on or after age 55 if there is no surviving spouse, no surviving child under 21 years old, and no surviving child who is blind or totally and permanently disabled. The amount claimed as a lien will be equal to the amount of all assistance DMAHS provided to a Medicaid client for services received on or after age 55, including any capitation payments made to an HMO on the client’s behalf by the Medicaid program.
What Expenses Can Be Paid With Assets of the Deceased Before Paying Medicaid?
Reasonable funeral expenses, costs and expenses related to the administration of the estate, and debts owed to the Office of the Public Guardian for Elderly Adults can be paid with the assets of the deceased. DMAHS’ claim is next in line, together with debts and taxes with preference under federal or New Jersey law.
How Will the Estate Know Money is Owed?
Those involved in handling the estate must contact DMAHS in writing as soon as possible after the death of the Medicaid client or former client. It is their responsibility to notify DMAHS to find out if DMAHS has a claim against the estate before any funds from the estate are spent (exception: reasonable funeral expenses may be paid). Distributions to any creditors or heirs cannot be made until the estate reimburses DMAHS if there is a Medicaid claim. Whoever is handling the estate should write to:
DMAHS
Office of Legal and Regulatory Affairs Attn: Estates
PO Box 712 - Mail Code #6
Trenton, NJ 08625.
DMAHS by law has 90 days from the date of receipt of the estate representative’s letter to advise if it will be seeking recovery.
If you have any questions regarding estate recovery or need more information about estate recovery, please call 609-588-2900.
(Use Eligibility Agency Letterhead)
ESTATE RECOVERY ACKNOWLEDGEMENT FORM
I, (Name of applicant, client or legal representative), do acknowledge notice that the Division of Medical Assistance and Health Services has the authority to file a claim and lien against the estate of a deceased Medicaid client or former client to recover all Medicaid payments for services received on or after age 55, including all capitation payments to any managed care organization, when there is no surviving spouse, no surviving children under the age of 21, and no surviving children of any age who are blind or permanently and totally disabled.
I also acknowledge notice that my estate may be required to pay back the Division of Medical Assistance and Health Services for those benefits.
I do hereby acknowledge receipt of the estate recovery notice provided by the Authorized Eligibility Agency for the NJ Division of Medical Assistance and Health Services this _______ day of _______________ , 20____.
Signature of applicant/representative Printed name of applicant/representative