Free Report on Wills and the New Probate Law of NJ
Compiled by Kenneth Vercammen
The New Probate Statute of NJ revised various sections of the New Jersey law on Wills and estates. The Law makes a number of substantial changes to the provisions governing the administration of estates and trusts in New Jersey.
IF YOU HAVE NO WILL:
If you leave no Will or your Will is declared invalid because it was improperly prepared or is not admissible to probate:
* State law determines who gets assets, not you
* Additional expenses will be incurred and extra work will be required to qualify an administrator
* Judge determines who gets custody of your children
* Possible additional State inheritance taxes and Federal estate taxes
* If you have no spouse or close relatives the State may take your property
* The procedure to distribute assets becomes more complicated-and the law makes no exceptions for persons in unusual need or for your own wishes.
* It may also cause fights and lawsuits within your family
When loved ones are grieving and dealing with death, they shouldn't be overwhelmed with Financial concerns. Careful estate planning helps take care of that.
The Uniform Probate Code attempts to bring greater uniformity to the rules governing testamentary and non-testamentary transfers in response to the significant number of non-testamentary transfers that occur at the time of the decedent's death. For example, a new term, "governing instrument" has been incorporated as a definition in the substitute to include deeds, trusts, insurance and annuity policies, POD (pay on death) accounts, securities registered in beneficiary form (TOD), pension, profit sharing, retirement and similar benefit plans, and other wealth transfer instruments.
The law also clarifies 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.
The law provides that divorce or annulment of a marriage, under certain circumstances, would revoke not only provisions of the former spouse's will, but also non-probate transfers occurring by reason of the decedent's death to the former spouse.
The law expands the provisions requiring survival of a beneficiary by 120 hours to succeed to an interest of a decedent in non-probate transfers.
The law also makes substantial revisions to the laws governing intestate succession. [Dying without a Will] For example, the substitute provides that the intestate share of a surviving spouse would be 100% of the intestate estate where all of the surviving descendants of the decedent are also the descendants of the surviving spouse and the surviving spouse has no other descendants. The surviving spouse would now be entitled to a larger share of the estate in the event that either a parent of the decedent survives a decedent who has no descendants, or there are descendants of the surviving spouse who are not descendants of the decedent. Finally, stepchildren of a decedent would be added as a final class of takers.
The law expands the law with respect to disinheritance of a person who criminally and intentionally kills the decedent to include revocation of non-testamentary dispositions.
The law consolidates the law concerning disclaimers of probate and non-probate property. The law clarifies that a fiduciary may, with court approval, disclaim any power or discretion held by such fiduciary, and may disclaim without court approval if the governing instrument so permits.
This law would also make some changes with regard to small estates. Under the old law, upon filing an affidavit with the surrogate the surviving spouse is entitled to the assets of an estate without administration if the assets do not exceed $10,000; similarly, in situations where there is no surviving spouse and the assets of the estate do not exceed $5,000, the heirs are entitled to the assets without administration if one of the heirs files an affidavit with the consent of the remaining heirs. This law amends N.J.S.A. 3B:10-3 and 3B:10-4 to increase these amounts to $20,000 and to $10,000, respectively.
Finally, the law expands the rules of construction formerly applicable only to Wills to other donative transfers.
The law provides a limited statute of limitations with respect to creditor claims against a decedent's estate.
Call our office to schedule a "confidential" appointment 732-572-0500
Kenneth Vercammen & Associates.
2053 Woodbridge Avenue
Edison, NJ 08817
www.njlaws.com
Monday, October 22, 2007
Michael Sternesky v. Ana Cecilia Salcie-Sternesky
10-22-07 A-5932-05T3
We consider equitable distribution of an accidental
disability retirement allowance awarded by the Board of Trustees
of the Police and Fire Retirement System (PFRS). The Board has
not provided guidance on segregation of the marital and
individual components of a disability pension, as we encouraged
in Larrison v. Larrison, 392 N.J. Super. 1, 18 (App. Div. 2007).
The parties in this case did not provide the trial court with
evidence that would permit such segregation, which we found
necessary in Larrison and Avallone v. Avallone, 275 N.J. Super.
575 (App. Div. 1994). We provide a formula for identification
of the marital component of a PFRS accidental disability
retirement allowance, which is inferable from the statutory
scheme and decisions of our courts addressing equitable
distribution of retirement assets, and we hold that a trial
court should apply that formula in the absence of relevant
evidence or guidance from the Legislature or Board.
10-22-07 A-5932-05T3
We consider equitable distribution of an accidental
disability retirement allowance awarded by the Board of Trustees
of the Police and Fire Retirement System (PFRS). The Board has
not provided guidance on segregation of the marital and
individual components of a disability pension, as we encouraged
in Larrison v. Larrison, 392 N.J. Super. 1, 18 (App. Div. 2007).
The parties in this case did not provide the trial court with
evidence that would permit such segregation, which we found
necessary in Larrison and Avallone v. Avallone, 275 N.J. Super.
575 (App. Div. 1994). We provide a formula for identification
of the marital component of a PFRS accidental disability
retirement allowance, which is inferable from the statutory
scheme and decisions of our courts addressing equitable
distribution of retirement assets, and we hold that a trial
court should apply that formula in the absence of relevant
evidence or guidance from the Legislature or Board.
10-17-07 In the Matter of the Trust Under Agreement of Blanche
P. Billings Vander Poel
A-0983-04T5
The settlor established a trust in 1950 under New Jersey
law with her son as income beneficiary for life and a gift of
the remainder to his "issue." Two years later the son married a
woman with a ten-year-old daughter, the appellant, and three
natural children resulted from that marriage. The son inquired
into adopting the appellant as a minor, but was unable to do so
because the family was then living abroad. Later he adopted the
appellant as an adult, some thirteen years after the settlor's
death.
Held that while an adopted child will equally participate
in a remainder class gift to "issue," an adult adoptee may not
so inherit from a "stranger to the adoption." The concept of
equitable adoption, while providing a judicial remedy in the
case of a child, is inapplicable to an adult adoptee. The
record indicated that the settlor's probable intention was not
to include an adopted child in the remainder gift to her son's
issue.
P. Billings Vander Poel
A-0983-04T5
The settlor established a trust in 1950 under New Jersey
law with her son as income beneficiary for life and a gift of
the remainder to his "issue." Two years later the son married a
woman with a ten-year-old daughter, the appellant, and three
natural children resulted from that marriage. The son inquired
into adopting the appellant as a minor, but was unable to do so
because the family was then living abroad. Later he adopted the
appellant as an adult, some thirteen years after the settlor's
death.
Held that while an adopted child will equally participate
in a remainder class gift to "issue," an adult adoptee may not
so inherit from a "stranger to the adoption." The concept of
equitable adoption, while providing a judicial remedy in the
case of a child, is inapplicable to an adult adoptee. The
record indicated that the settlor's probable intention was not
to include an adopted child in the remainder gift to her son's
issue.
Tuesday, October 02, 2007
6-13-07 M.E.F. v. A.B.F.
A-2501-05T1
In this case interpreting the spousal impoverishment
provisions of the Medicaid Catastrophic Care Act of 1988, we
discuss the circumstances in which a community spouse may obtain
a court order of support that supersedes the monthly income
allowance, determined through the administrative process, that
is deducted from the remaining assets of an institutionalized
spouse receiving Medicaid assistance in payment for his nursing
home care. We also discstate court proceedings.
A-2501-05T1
In this case interpreting the spousal impoverishment
provisions of the Medicaid Catastrophic Care Act of 1988, we
discuss the circumstances in which a community spouse may obtain
a court order of support that supersedes the monthly income
allowance, determined through the administrative process, that
is deducted from the remaining assets of an institutionalized
spouse receiving Medicaid assistance in payment for his nursing
home care. We also discstate court proceedings.
Thursday, September 27, 2007
ABA ELDER LAW COMMITTEE Newsletter Fall 2007
ABA General Practice, Solo and Small Firm Division
Chairs - Kenneth Vercammen, Edison, NJ and Jay Foonberg, Beverly Hills, CA
In this issue:
1. Alzheimer's Lesser Known Devastation - Is Your Family Poised to avoid it?
2. ESTATE PLANNING FOR
BLENDED FAMILIES
1. Alzheimer's Lesser Known Devastation - Is Your Family Poised to avoid it?
By: Dana E. Bookbinder, Esquire
With the incidence of Alzheimer's disease growing at an alarming rate, no one can afford to postpone long term care planning. The June 18, 2007, issue of Newsweek as well as the June edition of AARP Bulletin both report that Alzheimer's currently afflicts over 5 million Americans, and the numbers are expected to rise dramatically, especially as millions of baby boomers are reaching their 60s. According to the recent AARP Bulletin, one in eight people 65 and older currently has Alzheimer's, and half of those 85 and over are afflicted with it. While scientists search for drugs to prevent and remove deposits of plaque in the brain and Congress considers legislation to double funding for Alzheimer's research, families must work to protect themselves.
Alzheimer's takes a tremendous emotional, physical, and financial toll on families who must contend with it. The disease can last many years, and its course is unsteady and varies with each case. Caring for an Alzheimer's victim is also a round-the-clock job. Our office has worked with many individuals caring for a relative prone to wandering at any time of the day or night. The caregiver must tend to both the physical needs of the Alzheimer's patient and his or her safety. Many caregivers intend to keep their loved one at home, but once the disease has substantially progressed and the afflicted individual exhibits erratic behavior and physical problems, a long-term care facility becomes the only viable option. Otherwise, the burdens of providing care eventually would cause the caregiver's own health to diminish.
Because an individual with Alzheimer's eventually does not recognize his or her closest relatives and may even be subject to bouts of yelling or violent behavior, the disease puts enormous strains on family relations. Relationships between siblings are strained as well as relationships between parents and their children. Having worked with families who are contending with Alzheimer's disease for many years, our firm has assisted in many situations where one son or daughter is shouldering the burden of caring for an elderly parent while having to address criticisms by other siblings who do not appreciate the severity of their parent's condition. Sibling relationships often deteriorate when it becomes necessary to hire care providers outside the family. Today, nursing homes charge over $8,000 per month in our area and even home care runs a few thousand dollars a month. Often, the siblings who are not providing care wish to avoid these expenses to preserve a potential inheritance. Contrary to popular misconception, Medicare only covers extremely limited long-term care expenses. Even a home health aide can cost over $20 an hour. Siblings who are not the primary caretakers are best advised to witness the everyday limitations of their parent first-hand and to support their sibling who is the primary caretaker by providing short term respite care or help with errands.
According to the recent Newsweek article, the number of Alzheimer's cases is expected to more than double by the year 2050. In light of this chilling prediction, all individuals must have their estate planning documents in order. These include a Will, Advanced Directive for Health Care, and General Durable Power of Attorney. It is equally critical that family members communicate with one another to discuss health care wishes as well as financial issues and whether long-term care insurance policies are in place. When interviewed by Newsweek, Mark Shalloway, president of the National Academy of Elder Law Attorneys, explained the necessity of a General Durable Power of Attorney by stating that even after a catastrophic illness occurs, routine financial and legal decisions must continue to be made with banks, doctors, etc. For those who are concerned that entrusting others with their financial affairs is risky, the law requires agents under powers of attorney to act in good faith. Otherwise, they may be subject to court proceedings.
Families who are engaging in asset protection planning already know that Medicare cannot be counted on for long term care expenses. They understand that affording assisted living or nursing facilities, home care, or continuing care retirement facilities requires advanced planning. Though scientists are now hopeful that the next generation of Alzheimer's drugs currently under testing will be more effective than previous treatments, our current health care system demands that each of us takes responsibility for our own care in our later years. Proactive legal planning brings the astronomical cost of this care within reach for families of diverse financial means. For those who seek counsel, family finances and relationships are much healthier.
Begley & Bookbinder, P.C. is an Elder & Disability Law Firm with offices in Moorestown, Stone Harbor and Lawrenceville, New Jersey and Oxford Valley, Pennsylvania and can be contacted at 800-533-7227. The firm services southern and central New Jersey and eastern Pennsylvania. Tom Begley Jr. is one of the speakers with Kenneth Vercammen at the NJ State Bar Association's Annual Nuts & Bolts of Elder Law and co-author with Kenneth Vercammen, Martin Spigner and Kathleen Sheridan of the 400 plus page book on Elder Law
2. ESTATE PLANNING FOR
BLENDED FAMILIES
By: Thomas D. Begley, Jr., Esquire
A blended family is a family where parents have children by previous marriages. It can also be a situation where children have children from prior marriages. Death and divorce result in larger numbers of second marriages. Second marriages present certain planning problems that need to be addressed.
(1) Emotional Issues. There are often emotional issues. A recently divorced client may have strained relationships with his or her children, because of the attachments those children have with the previous spouse.
(2) Children from Two Marriages. The stepparent may have a difficult relationship with the natural child of the other spouse. An additional issue is providing for a child of a previous marriage without placing the assets intended to benefit that child under the control of the “other” and biological parent.
Life insurance is a useful tool in dealing with this situation.
(3) Obligation Set Forth in Divorce Decrees, Settlements Agreements and Prenuptial Agreements. A settlement agreement negotiated in connection with a final order of divorce may impose obligations on a divorcing parent, such as establishing and funding trusts and designating beneficiaries to fund those trusts. It is important that the estate planning attorney obtain copies of any such agreements to ensure that the estate plan complies with those agreements.
If there is a prenuptial agreement, after the marriage has lasted for some years, the wealthier spouse often wants to deviate from the prenuptial agreement and give the other spouse a larger, more generous provision than anticipated in the agreement. If there is to be a variation from the prenuptial agreement, this should be documented in the estate plan or it may even require an amendment to the prenuptial agreement. In that event, spouses must obtain separate counsel.
(4) Significant Age Differences. If there is a significant age difference between spouses, certain issues must be addressed. Special rules for computing minimum distributions apply if there is more than a 10 year difference in ages between the spouses.
Additionally, the children of the older spouse may resent having to wait for the death of the younger spouse to receive their inheritance. Again, life insurance is a useful vehicle to solve this problem.
(5) Wealth Disparities Between Spouses. Generally, to achieve maximum federal and state estate tax savings, the estates between spouses are balanced. If one spouse has most of the family assets and the other spouse predeceases, the family will not have taken advantage of the opportunity to fund a credit shelter trust to take advantage of the federal or state estate tax exemption. Normally, the solution would be to have the wealthier spouse transfer assets to the opposite spouse so that the maximum funding could be achieved. This may cause resentment among children of the wealthier spouse.
If the wealthier spouse supports his children in a more lavish manner than the less wealthy spouse, there may be resentment not only from the less wealthy spouse but her children as well. The situation is acerbated if the less wealthy spouse is male. The solution may be a joint revocable trust.
(6) Apportionment of Estate Taxes. A common method to designate payment of estate taxes is through the residuary estate. This could result in certain beneficiaries receiving virtually the entire inheritance and the tax being paid by other beneficiaries. This issue is particularly acute when inheritance passes outside the will through non-probate assets, such as beneficiary designations or jointly-owned property. There are three telltale warning signs:
• large non-probate assets passing to beneficiaries or large specific bequests passing to less than all of the beneficiaries;
• beneficiaries of each spouse’s will or trust are not the same; and/or
• beneficiaries of non-testamentary trust assets are not the same.
Begley & Bookbinder, P.C. is an Elder & Disability Law Firm with offices in Moorestown, Stone Harbor and Lawrenceville, New Jersey and Oxford Valley, Pennsylvania and can be contacted at 800-533-7227. The firm services southern and central New Jersey and eastern Pennsylvania. Tom Begley Jr. is one of the speakers with Kenneth Vercammen at the NJ State Bar Association's Annual Nuts & Bolts of Elder Law Seminar and co-author with Kenneth Vercammen, Martin Spigner and Kathleen Sheridan of the 400 plus page book on Elder Law.
_______________________
4. WE PUBLISH YOUR FORMS AND ARTICLES
To help your practice, we feature in this newsletter edition a few forms and articles PLUS tips on marketing and improving service to clients. But your Editor and chairs can't do it all. Please mail articles, suggestions or ideas you wish to share with others in our Tort and Insurance Committee.
Let us know if you are finding any useful information or anything you can share with the other members. You will receive written credit as the source and thus you can advise your clients and friends you were published in an ABA publication. We will try to meet you needs.
Send Us Your Marketing Tips
We are increasing the frequency of our newsletter. Send us your short tips on your great or new successful marketing techniques.
You can become a published ABA author. Enjoy your many ABA benefits.
Send us your articles & ideas
To help your practice, we feature in this newsletter edition a few articles and tips on marketing and improving service to clients. But your Editor and chairs can't do it all. Please send articles, suggestions or ideas you wish to share with others.
General Practice, Solo and Small Firm Division:
Elder Law Committee and the ESTATE PLANNING, PROBATE & TRUST COMMITTEE
Who We Are
This committee focuses on improving estate planning skills, substantive law knowledge and office procedures for the attorney who practices estate planning, probate and trust law. This committee also serves as a network resource in educating attorneys regarding Elder Law situations.
To help your practice, we feature in this newsletter edition a few articles and tips on marketing and improving service to clients. But your Editor and chairs can't do it all. Please send articles, suggestions or ideas you wish to share with others.
Let us know if you are finding any useful information or anything you can share with the other members. You will receive written credit as the source and thus you can advise your clients and friends you were published in an ABA publication. We will try to meet you needs.
We also seek articles on Elder Law, Probate, Wills, Medicaid and Marketing. Please send your marketing ideas and articles to us. You can become a published ABA author.
________________________________________
The Elder Law Committee of the ABA General Practice Division is directed towards general practitioners and more experienced elder law attorneys. The committee consistently sponsors programs at the Annual Meeting, the focus of which is shifting to advanced topics for the more experienced elder lawyer.
This committee also focuses on improving estate planning skills, substantive law knowledge and office procedures for the attorney who practices estate planning, probate and trust law. This committee also serves as a network resource in educating attorneys regarding Elder Law situations.
Kenneth Vercammen, Esq. co-Chair
Jay Foonberg, Beverly Hills Co-chair, Author of Best Sellers "How to
Start and Build a Law Practice" and "How to get and keep good clients', Beverly Hills, CA JayFoonberg@aol.com>
We will also provide tips on how to promote your law office, your practice and Personal Marketing Skills in general. It does not deal with government funded "legal services" for indigent, welfare cases.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
Kenv@njlaws.com
http://www.njlaws.com/
http://elder-law.blogspot.com/
ABA General Practice, Solo and Small Firm Division
Chairs - Kenneth Vercammen, Edison, NJ and Jay Foonberg, Beverly Hills, CA
In this issue:
1. Alzheimer's Lesser Known Devastation - Is Your Family Poised to avoid it?
2. ESTATE PLANNING FOR
BLENDED FAMILIES
1. Alzheimer's Lesser Known Devastation - Is Your Family Poised to avoid it?
By: Dana E. Bookbinder, Esquire
With the incidence of Alzheimer's disease growing at an alarming rate, no one can afford to postpone long term care planning. The June 18, 2007, issue of Newsweek as well as the June edition of AARP Bulletin both report that Alzheimer's currently afflicts over 5 million Americans, and the numbers are expected to rise dramatically, especially as millions of baby boomers are reaching their 60s. According to the recent AARP Bulletin, one in eight people 65 and older currently has Alzheimer's, and half of those 85 and over are afflicted with it. While scientists search for drugs to prevent and remove deposits of plaque in the brain and Congress considers legislation to double funding for Alzheimer's research, families must work to protect themselves.
Alzheimer's takes a tremendous emotional, physical, and financial toll on families who must contend with it. The disease can last many years, and its course is unsteady and varies with each case. Caring for an Alzheimer's victim is also a round-the-clock job. Our office has worked with many individuals caring for a relative prone to wandering at any time of the day or night. The caregiver must tend to both the physical needs of the Alzheimer's patient and his or her safety. Many caregivers intend to keep their loved one at home, but once the disease has substantially progressed and the afflicted individual exhibits erratic behavior and physical problems, a long-term care facility becomes the only viable option. Otherwise, the burdens of providing care eventually would cause the caregiver's own health to diminish.
Because an individual with Alzheimer's eventually does not recognize his or her closest relatives and may even be subject to bouts of yelling or violent behavior, the disease puts enormous strains on family relations. Relationships between siblings are strained as well as relationships between parents and their children. Having worked with families who are contending with Alzheimer's disease for many years, our firm has assisted in many situations where one son or daughter is shouldering the burden of caring for an elderly parent while having to address criticisms by other siblings who do not appreciate the severity of their parent's condition. Sibling relationships often deteriorate when it becomes necessary to hire care providers outside the family. Today, nursing homes charge over $8,000 per month in our area and even home care runs a few thousand dollars a month. Often, the siblings who are not providing care wish to avoid these expenses to preserve a potential inheritance. Contrary to popular misconception, Medicare only covers extremely limited long-term care expenses. Even a home health aide can cost over $20 an hour. Siblings who are not the primary caretakers are best advised to witness the everyday limitations of their parent first-hand and to support their sibling who is the primary caretaker by providing short term respite care or help with errands.
According to the recent Newsweek article, the number of Alzheimer's cases is expected to more than double by the year 2050. In light of this chilling prediction, all individuals must have their estate planning documents in order. These include a Will, Advanced Directive for Health Care, and General Durable Power of Attorney. It is equally critical that family members communicate with one another to discuss health care wishes as well as financial issues and whether long-term care insurance policies are in place. When interviewed by Newsweek, Mark Shalloway, president of the National Academy of Elder Law Attorneys, explained the necessity of a General Durable Power of Attorney by stating that even after a catastrophic illness occurs, routine financial and legal decisions must continue to be made with banks, doctors, etc. For those who are concerned that entrusting others with their financial affairs is risky, the law requires agents under powers of attorney to act in good faith. Otherwise, they may be subject to court proceedings.
Families who are engaging in asset protection planning already know that Medicare cannot be counted on for long term care expenses. They understand that affording assisted living or nursing facilities, home care, or continuing care retirement facilities requires advanced planning. Though scientists are now hopeful that the next generation of Alzheimer's drugs currently under testing will be more effective than previous treatments, our current health care system demands that each of us takes responsibility for our own care in our later years. Proactive legal planning brings the astronomical cost of this care within reach for families of diverse financial means. For those who seek counsel, family finances and relationships are much healthier.
Begley & Bookbinder, P.C. is an Elder & Disability Law Firm with offices in Moorestown, Stone Harbor and Lawrenceville, New Jersey and Oxford Valley, Pennsylvania and can be contacted at 800-533-7227. The firm services southern and central New Jersey and eastern Pennsylvania. Tom Begley Jr. is one of the speakers with Kenneth Vercammen at the NJ State Bar Association's Annual Nuts & Bolts of Elder Law and co-author with Kenneth Vercammen, Martin Spigner and Kathleen Sheridan of the 400 plus page book on Elder Law
2. ESTATE PLANNING FOR
BLENDED FAMILIES
By: Thomas D. Begley, Jr., Esquire
A blended family is a family where parents have children by previous marriages. It can also be a situation where children have children from prior marriages. Death and divorce result in larger numbers of second marriages. Second marriages present certain planning problems that need to be addressed.
(1) Emotional Issues. There are often emotional issues. A recently divorced client may have strained relationships with his or her children, because of the attachments those children have with the previous spouse.
(2) Children from Two Marriages. The stepparent may have a difficult relationship with the natural child of the other spouse. An additional issue is providing for a child of a previous marriage without placing the assets intended to benefit that child under the control of the “other” and biological parent.
Life insurance is a useful tool in dealing with this situation.
(3) Obligation Set Forth in Divorce Decrees, Settlements Agreements and Prenuptial Agreements. A settlement agreement negotiated in connection with a final order of divorce may impose obligations on a divorcing parent, such as establishing and funding trusts and designating beneficiaries to fund those trusts. It is important that the estate planning attorney obtain copies of any such agreements to ensure that the estate plan complies with those agreements.
If there is a prenuptial agreement, after the marriage has lasted for some years, the wealthier spouse often wants to deviate from the prenuptial agreement and give the other spouse a larger, more generous provision than anticipated in the agreement. If there is to be a variation from the prenuptial agreement, this should be documented in the estate plan or it may even require an amendment to the prenuptial agreement. In that event, spouses must obtain separate counsel.
(4) Significant Age Differences. If there is a significant age difference between spouses, certain issues must be addressed. Special rules for computing minimum distributions apply if there is more than a 10 year difference in ages between the spouses.
Additionally, the children of the older spouse may resent having to wait for the death of the younger spouse to receive their inheritance. Again, life insurance is a useful vehicle to solve this problem.
(5) Wealth Disparities Between Spouses. Generally, to achieve maximum federal and state estate tax savings, the estates between spouses are balanced. If one spouse has most of the family assets and the other spouse predeceases, the family will not have taken advantage of the opportunity to fund a credit shelter trust to take advantage of the federal or state estate tax exemption. Normally, the solution would be to have the wealthier spouse transfer assets to the opposite spouse so that the maximum funding could be achieved. This may cause resentment among children of the wealthier spouse.
If the wealthier spouse supports his children in a more lavish manner than the less wealthy spouse, there may be resentment not only from the less wealthy spouse but her children as well. The situation is acerbated if the less wealthy spouse is male. The solution may be a joint revocable trust.
(6) Apportionment of Estate Taxes. A common method to designate payment of estate taxes is through the residuary estate. This could result in certain beneficiaries receiving virtually the entire inheritance and the tax being paid by other beneficiaries. This issue is particularly acute when inheritance passes outside the will through non-probate assets, such as beneficiary designations or jointly-owned property. There are three telltale warning signs:
• large non-probate assets passing to beneficiaries or large specific bequests passing to less than all of the beneficiaries;
• beneficiaries of each spouse’s will or trust are not the same; and/or
• beneficiaries of non-testamentary trust assets are not the same.
Begley & Bookbinder, P.C. is an Elder & Disability Law Firm with offices in Moorestown, Stone Harbor and Lawrenceville, New Jersey and Oxford Valley, Pennsylvania and can be contacted at 800-533-7227. The firm services southern and central New Jersey and eastern Pennsylvania. Tom Begley Jr. is one of the speakers with Kenneth Vercammen at the NJ State Bar Association's Annual Nuts & Bolts of Elder Law Seminar and co-author with Kenneth Vercammen, Martin Spigner and Kathleen Sheridan of the 400 plus page book on Elder Law.
_______________________
4. WE PUBLISH YOUR FORMS AND ARTICLES
To help your practice, we feature in this newsletter edition a few forms and articles PLUS tips on marketing and improving service to clients. But your Editor and chairs can't do it all. Please mail articles, suggestions or ideas you wish to share with others in our Tort and Insurance Committee.
Let us know if you are finding any useful information or anything you can share with the other members. You will receive written credit as the source and thus you can advise your clients and friends you were published in an ABA publication. We will try to meet you needs.
Send Us Your Marketing Tips
We are increasing the frequency of our newsletter. Send us your short tips on your great or new successful marketing techniques.
You can become a published ABA author. Enjoy your many ABA benefits.
Send us your articles & ideas
To help your practice, we feature in this newsletter edition a few articles and tips on marketing and improving service to clients. But your Editor and chairs can't do it all. Please send articles, suggestions or ideas you wish to share with others.
General Practice, Solo and Small Firm Division:
Elder Law Committee and the ESTATE PLANNING, PROBATE & TRUST COMMITTEE
Who We Are
This committee focuses on improving estate planning skills, substantive law knowledge and office procedures for the attorney who practices estate planning, probate and trust law. This committee also serves as a network resource in educating attorneys regarding Elder Law situations.
To help your practice, we feature in this newsletter edition a few articles and tips on marketing and improving service to clients. But your Editor and chairs can't do it all. Please send articles, suggestions or ideas you wish to share with others.
Let us know if you are finding any useful information or anything you can share with the other members. You will receive written credit as the source and thus you can advise your clients and friends you were published in an ABA publication. We will try to meet you needs.
We also seek articles on Elder Law, Probate, Wills, Medicaid and Marketing. Please send your marketing ideas and articles to us. You can become a published ABA author.
________________________________________
The Elder Law Committee of the ABA General Practice Division is directed towards general practitioners and more experienced elder law attorneys. The committee consistently sponsors programs at the Annual Meeting, the focus of which is shifting to advanced topics for the more experienced elder lawyer.
This committee also focuses on improving estate planning skills, substantive law knowledge and office procedures for the attorney who practices estate planning, probate and trust law. This committee also serves as a network resource in educating attorneys regarding Elder Law situations.
Kenneth Vercammen, Esq. co-Chair
Jay Foonberg, Beverly Hills Co-chair, Author of Best Sellers "How to
Start and Build a Law Practice" and "How to get and keep good clients', Beverly Hills, CA JayFoonberg@aol.com>
We will also provide tips on how to promote your law office, your practice and Personal Marketing Skills in general. It does not deal with government funded "legal services" for indigent, welfare cases.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
Kenv@njlaws.com
http://www.njlaws.com/
http://elder-law.blogspot.com/
Monday, July 09, 2007
M.E.F. v. A.B.F.
06-13-07 A-2501-05T1
In this case interpreting the spousal impoverishment
provisions of the Medicaid Catastrophic Care Act of 1988, we
discuss the circumstances in which a community spouse may obtain
a court order of support that supersedes the monthly income
allowance, determined through the administrative process, that
is deducted from the remaining assets of an institutionalized
spouse receiving Medicaid assistance in payment for his nursing
home care. We also discuss the level of proof required in the
state court proceedings.
06-13-07 A-2501-05T1
In this case interpreting the spousal impoverishment
provisions of the Medicaid Catastrophic Care Act of 1988, we
discuss the circumstances in which a community spouse may obtain
a court order of support that supersedes the monthly income
allowance, determined through the administrative process, that
is deducted from the remaining assets of an institutionalized
spouse receiving Medicaid assistance in payment for his nursing
home care. We also discuss the level of proof required in the
state court proceedings.
Friday, July 06, 2007
Estate of Patricia Albanese v. John R. Lolio,
Jr., Esq.
06-04-07 A-1861-05T2
Summary judgment was granted to a law firm retained to
represent an estate which was sued for malpractice by the
executrix and other beneficiaries individually. The critical
issue related to whether the firm owed a duty of representation
to the plaintiffs as individuals based on the failure to advise
about personal tax liability relative to the sale of an asset of
the estate for estate tax purposes. The retainer should have
been clearer on the scope of representation, and summary
judgment was reversed as to the issue of duty to the executrix
as an individual, but not as to her sisters, the other
beneficiaries.
Jr., Esq.
06-04-07 A-1861-05T2
Summary judgment was granted to a law firm retained to
represent an estate which was sued for malpractice by the
executrix and other beneficiaries individually. The critical
issue related to whether the firm owed a duty of representation
to the plaintiffs as individuals based on the failure to advise
about personal tax liability relative to the sale of an asset of
the estate for estate tax purposes. The retainer should have
been clearer on the scope of representation, and summary
judgment was reversed as to the issue of duty to the executrix
as an individual, but not as to her sisters, the other
beneficiaries.
Friday, June 29, 2007
IMO the Estate of Edward H. Shinn, IV
06-20-07 A-3819-05T5
In this appeal, the court determined that the trial judge
mistakenly invoked the doctrine of equitable estoppel in
enforcing plaintiff Stacey Shinn's premarital waiver of an
elective share to the estate of her late husband, Edward Shinn,
IV, which waiver, in the circumstances, was otherwise rendered
unenforceable by N.J.S.A. 3B:8-10 and N.J.S.A. 37:2-38. The
court held that because "equity follows the law," the doctrine
of equitable estoppel should not have been utilized to override
the Legislature's declaration that a premarital agreement, which
did not fully disclose what was being waived or which did not
contain an adequate waiver of such a disclosure, must not be
enforced.
06-20-07 A-3819-05T5
In this appeal, the court determined that the trial judge
mistakenly invoked the doctrine of equitable estoppel in
enforcing plaintiff Stacey Shinn's premarital waiver of an
elective share to the estate of her late husband, Edward Shinn,
IV, which waiver, in the circumstances, was otherwise rendered
unenforceable by N.J.S.A. 3B:8-10 and N.J.S.A. 37:2-38. The
court held that because "equity follows the law," the doctrine
of equitable estoppel should not have been utilized to override
the Legislature's declaration that a premarital agreement, which
did not fully disclose what was being waived or which did not
contain an adequate waiver of such a disclosure, must not be
enforced.
Tuesday, May 15, 2007
Kenneth Vercammen's NJ Laws email newsletter E244 May 10, 2007
In this issue:
1 Personal Legal Checkup
Recent cases:
2. Pocket bike is motorized vehicle subject to NJ Laws and DWI
3. Defendant guilty of leaving scene where defendant admitted contact with vehicle
4. Double-jeopardy did not bar new trial where mistrial declared if judge could not be neutral.
5. To be guilty of "fictitious reports" defendant must act with knowing mental state.
6. Effective Business Succession Planning
7. Major Changes in Municipal Court - DWI, Recent DWI and Criminal Cases and the New Alcotest Breath Machine
1 Personal Legal Checkup
1. Do you have a will which has been revised within the past 3 years? (Y, N)
2. Are there any estate planning changes which should be considered? (Y, N)
3. Have the liability policy limits of your insurance increased within the past three years? (Y, N)
4. Are there any potential claims which could be asserted against you? (Y, N)
5. Do you presently have a written and current listing of all important future dates, such as expiration, option, maturity and due dates? (Y, N)
6. Are you aware of, and do you have a current valuation of, all potential government benefits to which you are or will become entitled? (Y, N)
7. Do you have a file, stored in a secure and fireproof location, containing all important documents (wills, titles, securities, contracts, marriage/divorce papers, deeds, pension/profit sharing plans, etc.) (Y, N)
8. Have you within the past 3 years reviewed the beneficiary designation on all documents which require such information? (Y, N)
9. Do you have a complete and current personal financial statement which list in detail all of your personal assets and liabilities? (Y, N)
10. Do you have a complete and current inventory of all of your physical possessions, sufficient to support a claim in the event of a loss? (Y, N)
11. To the extent the foregoing question are relevant to your spouse(if any) and minor children (if any), are there any matters or issues which should be updated, reconsidered, or changed? (Y, N)
12. To the extent there are persons other than spouse or children for whom you may have some responsibilities ( e.g., aging parents ), are there items or issues which should be updated or changed? (Y, N)
13. Have any of these questions caused you to consider taking some action or making some further review? (Y, N)
Recent cases:
2. Pocket bike is motorized vehicle subject to NJ Laws and DWI. State v. Kaiser Appellate Division, A-2404-05T3, September 26, 2006, not approved for publication.
Conviction following a trial de novo of driving while intoxicated in violation of N.J.S.A. 39:4-50 affirmed substantially for the reasons expressed by the Law Division; the defendant argued on appeal that the “pocket bike” that he had operated on a public roadway was not a “motor vehicle” for the purpose of prosecution under §39:4-50; N.J.S.A. 39:1-1 defines “motor vehicle” to include “all vehicles propelled otherwise than by muscular power, excepting such vehicles as run only upon rails or tracks and motorized bicycles”; a “pocket bike” is not propelled by muscular power or the use of pedals, does not run on rails or tracks, and is not a “motorized bicycle” because it does not have pedals; therefore, a “pocket bike” was a “motor vehicle” when the defendant’s offense occurred; although the Legislature later enacted a regulatory scheme for “motorized scooters,” including “pocket bikes,” that is independent of the scheme for “motor vehicles,” there was no legislative intent to provide retroactive relief to drunk drivers who were convicted under prior law. Source: Facts-on-Call Order No. 20243
3. Defendant guilty of leaving scene where defendant admitted contact with vehicle. State v. Friedman Appellate Division, A-272-05T2, October 4, 2006, not approved for publication.
Conviction following a trial de novo of leaving the scene of an accident in violation of N.J.S.A. 39:4-129(b) affirmed substantially for the reasons expressed by the Law Division; a driver testified that her vehicle was stopped in traffic when a blue Jaguar hit it in the rear; the driver saw “a small indentation” and cracked lacquer on her bumper, and she wrote down the Jaguar’s license plate number; the Jaguar was determined to belong to the defendant, whom the driver identified in court; the defendant had driven from the scene without giving the driver his name and address, driver’s license, or vehicle registration; the defendant admitted that his Jaguar had touched the driver’s vehicle but asserted that the touching did not amount to an accident; however, the Law Division properly concluded that the defendant was aware that he had been in an accident and that the requirements of §39:4-129(b) therefore were satisfied; even if the impact was minimal, that was no defense to the charge. Source: Facts-on-Call Order No. 20285
4. Double-jeopardy did not bar new trial where mistrial declared if judge could not be neutral. State v. Logory Appellate Division, A-3582-04T3, October 19, 2006, not approved for publication.
Law Division decision that the retrial of the defendant in the Municipal Court on charges of driving while intoxicated and making an improper lane change was not a double-jeopardy violation affirmed; the first Municipal Court judge declared a mistrial sua sponte because he no longer could be neutral and detached in light of defense counsel’s conduct; at the retrial, the second Municipal Court judge convicted the defendant of both charges; the Law Division rejected the defendant’s double-jeopardy claim and convicted him of both charges following a trial de novo; the Appellate Division rejected the defendant’s argument that double-jeopardy principles barred his retrial because the first Municipal Court judge could have exercised reasonable alternatives to declaring a mistrial; “manifest necessity” and the “ends of public justice” required the first Municipal Court judge to recuse himself when he no longer could be fair and impartial and therefore to declare a mistrial sua sponte. Source: Facts-on-Call Order No. 20370
5. To be guilty of "fictitious reports" defendant must act with knowing mental state. State v. Taylor Law Division, Camden County, Appeal No. 02-2006, approved for publication June 20, 2006.
As a matter of first impression, the Law Division applied the “diminished capacity” statute, N.J.S.A. 2C:4-2, to the case of a defendant who, while in a hallucinatory state, had reported an offense to the police
that had not occurred, and it concluded that the State had not proved that the defendant had acted with the “knowing” mental state required by the fictitious reports statute, N.J.S.A. 2C:28-4b(1). Source: Facts-on-Call Order No. 93068
6. Effective Business Succession Planning
By Saul Simon
Business owners invest significant amounts of time and financial resources to make their enterprises successful. Quite often, due to the quick pace of day-to-day operations, planning for succession of ownership is relegated to a low-priority task. But there comes a point in the life cycle of any business when the owner is no longer able to manage the firm that he or she founded.
Because the timing of death or disability is difficult to predict, it’s prudent to have a succession plan in place now to safeguard your family’s financial well being, and to provide your business with leadership during a transition period.
A Family Affair?
One logical solution—and one that most entrepreneurs may want to choose—is to turn the reins over to their children. However, despite its emotional and intuitive appeal, the odds are stacked squarely against a business surviving a transfer down the bloodline.
According to the U.S. Small Business Administration, two-thirds of family-run enterprises fail to make the successful transition to a second generation of ownership, and less than 15% survive into the third generation. Making a successful transition even trickier are issues brought on by divorce, blended families, or rivalries among children.
The best course of action may be either to identify strong candidates within your company who can continue to run the business and provide a source of financial security for your family, or to look at the potential for selling the business to an outside party.
“You have to be realistic,” says Jack Kaewpalug, Certified Financial PlannerTM Practitioner with Lincoln Financial Advisors Corp. in Irvine, Calif. “If you’re the person who is responsible for 80% of the firm’s sales, you’ll need to identify somebody who can assume that role if you want to keep the operation going.”
Transitional Steps
Whichever course you eventually decide is right for your business, there are steps you can take now that will ease the transition.
* Groom new management. Who is best able to run the business in your absence? Perhaps your children have spent years growing up in the business and have become capable managers in their own right. If not, look to your existing management team, and make your intentions known. Be sure that candidates are capable and interested in taking over.
* Determine a value. Work with a valuation specialist to get a fair assessment of what your business might be worth. While valuation analysis may be an art as much as it is a science, you should place a value on your business in the event you decide to sell. There are several valuation methods, including book value, discounted cash flow, or you could hire a professional appraiser. If you decide to transfer the business to your children, a professional appraisal is generally required to withstand IRS scrutiny.
* Draft a buy-sell agreement. Depending on the structure of ownership, this document will be a binding agreement detailing the terms of ownership transfer between you and your offspring, you and a non-family successor, or you and your partners. Be sure to specify how the agreement will be funded. “Proceeds from a life insurance policy are frequently used as a way to fund a buy-sell arrangement,” says Kaewpalug, “Other options include loans from a bank or company earnings that are paid back through an ‘earn-out’ arrangement with your successor, whereby the loan is paid back in regular installments.
* ESOPs. If you have a large number of employees, another option is an Employee Stock Ownership Plan (ESOP), whereby a bank lends money to the ESOP to purchase your interest in the business, and the employees then buy the shares through regular payroll deductions.
Planning for succession can be an unpleasant task, although the outcome can be even more unpleasant if you fail to plan. “You’ll have a lot more options if you start to plan when things are going great,” says Kaewpalug. “What you don’t want is a situation where your family is scrambling to salvage some value from the business after you’re gone.”
Simon Financial Group
399 Thornall Street, 12th Floor
Edison, NJ 08837
Phone: (732)623.2078
Fax: (732)623.2088
www.saulsimon.com
7. Major Changes in Municipal Court - DWI, Recent DWI and Criminal Cases and the New Alcotest Breath Machine
NJSBA Annual Meeting- Borgata Resort, Atlantic City
Thursday, May 17 10:30 a.m. - noon Studio III room
Discussion of new DWI law with .08 BAC; the new 7110 breathalyzer testing machine; recent cases involving DWI or drugs; the refusal law and pending legislation; court rules to limit plea bargaining; blood test admissibility in a DWI or drug case suppression and other pre-trial motions.
Speakers:
John Menzel, Esq.
Co-Counsel, State v Chun, State v Foley
Kenneth A. Vercammen, Esq.
Past Chair, NJSBA Municipal Court Section
Hon. Marilyn E. Williams
Newark Municipal Court
Richard M. Keil, Esq.
Oakhurst
Sponsors: Municipal Court Practice Section
Criminal Law Section
General Practice Section
Young Lawyers Division
ICLE
Certified Trial Attorneys: 1.5 criminal credits pending
PA CLE: 1.5 substantive credits pending
NY CLE (Transitional/Non-transitional): 1.5 professional practice credits
One speaker will also provide updated information on the 7100 Alcotest Mark III MK breath test machine that will replace the Breathalyzer Model 900 and 900A, used in New Jersey for the past thirty years. He will also discuss the science and operation of this new breath test machine, and consider its impact on breath testing in New Jersey. This information is critical for attorneys who represent plaintiffs or defendants in DWI matters.
Materials Provided to all Attendees:
Call NJSBA at 732-249-5000 for meeting registration details
_____________________________
Our law blog- http://njlaws1.blogspot.com/
Thank you for reading our newsletter! God Bless America USA #1
We appreciate continued referrals. We want to take the time to extend to our friends and clients our sincere gratitude because it is good friends and clients that make our business grow. Client recommendation is a very important source of new clients to us. We are grateful for the recommendation of new clients. We will do our best to give all clients excellent care. We shall do our best to justify all recommendations.
"Celebrating more than 21 years of providing excellent service to clients 1985-2007" Former Prosecutor
This newsletter is produced to be sent electronically. If you know someone who would also like to receive this email newsletter, please have them email us at newsletter@njlaws.com.
Free T- shirts and soda can holders available for all current and past clients. Please come into office.
Editor's Note and Disclaimer: All materials Copyright 2007. You may pass along the information on the NJ Laws Newsletter and website, provided the name and address of the Law Office is included.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com
Admitted to practice law in New Jersey, New York, Pennsylvania, US Supreme Court and Federal District Court
In this issue:
1 Personal Legal Checkup
Recent cases:
2. Pocket bike is motorized vehicle subject to NJ Laws and DWI
3. Defendant guilty of leaving scene where defendant admitted contact with vehicle
4. Double-jeopardy did not bar new trial where mistrial declared if judge could not be neutral.
5. To be guilty of "fictitious reports" defendant must act with knowing mental state.
6. Effective Business Succession Planning
7. Major Changes in Municipal Court - DWI, Recent DWI and Criminal Cases and the New Alcotest Breath Machine
1 Personal Legal Checkup
1. Do you have a will which has been revised within the past 3 years? (Y, N)
2. Are there any estate planning changes which should be considered? (Y, N)
3. Have the liability policy limits of your insurance increased within the past three years? (Y, N)
4. Are there any potential claims which could be asserted against you? (Y, N)
5. Do you presently have a written and current listing of all important future dates, such as expiration, option, maturity and due dates? (Y, N)
6. Are you aware of, and do you have a current valuation of, all potential government benefits to which you are or will become entitled? (Y, N)
7. Do you have a file, stored in a secure and fireproof location, containing all important documents (wills, titles, securities, contracts, marriage/divorce papers, deeds, pension/profit sharing plans, etc.) (Y, N)
8. Have you within the past 3 years reviewed the beneficiary designation on all documents which require such information? (Y, N)
9. Do you have a complete and current personal financial statement which list in detail all of your personal assets and liabilities? (Y, N)
10. Do you have a complete and current inventory of all of your physical possessions, sufficient to support a claim in the event of a loss? (Y, N)
11. To the extent the foregoing question are relevant to your spouse(if any) and minor children (if any), are there any matters or issues which should be updated, reconsidered, or changed? (Y, N)
12. To the extent there are persons other than spouse or children for whom you may have some responsibilities ( e.g., aging parents ), are there items or issues which should be updated or changed? (Y, N)
13. Have any of these questions caused you to consider taking some action or making some further review? (Y, N)
Recent cases:
2. Pocket bike is motorized vehicle subject to NJ Laws and DWI. State v. Kaiser Appellate Division, A-2404-05T3, September 26, 2006, not approved for publication.
Conviction following a trial de novo of driving while intoxicated in violation of N.J.S.A. 39:4-50 affirmed substantially for the reasons expressed by the Law Division; the defendant argued on appeal that the “pocket bike” that he had operated on a public roadway was not a “motor vehicle” for the purpose of prosecution under §39:4-50; N.J.S.A. 39:1-1 defines “motor vehicle” to include “all vehicles propelled otherwise than by muscular power, excepting such vehicles as run only upon rails or tracks and motorized bicycles”; a “pocket bike” is not propelled by muscular power or the use of pedals, does not run on rails or tracks, and is not a “motorized bicycle” because it does not have pedals; therefore, a “pocket bike” was a “motor vehicle” when the defendant’s offense occurred; although the Legislature later enacted a regulatory scheme for “motorized scooters,” including “pocket bikes,” that is independent of the scheme for “motor vehicles,” there was no legislative intent to provide retroactive relief to drunk drivers who were convicted under prior law. Source: Facts-on-Call Order No. 20243
3. Defendant guilty of leaving scene where defendant admitted contact with vehicle. State v. Friedman Appellate Division, A-272-05T2, October 4, 2006, not approved for publication.
Conviction following a trial de novo of leaving the scene of an accident in violation of N.J.S.A. 39:4-129(b) affirmed substantially for the reasons expressed by the Law Division; a driver testified that her vehicle was stopped in traffic when a blue Jaguar hit it in the rear; the driver saw “a small indentation” and cracked lacquer on her bumper, and she wrote down the Jaguar’s license plate number; the Jaguar was determined to belong to the defendant, whom the driver identified in court; the defendant had driven from the scene without giving the driver his name and address, driver’s license, or vehicle registration; the defendant admitted that his Jaguar had touched the driver’s vehicle but asserted that the touching did not amount to an accident; however, the Law Division properly concluded that the defendant was aware that he had been in an accident and that the requirements of §39:4-129(b) therefore were satisfied; even if the impact was minimal, that was no defense to the charge. Source: Facts-on-Call Order No. 20285
4. Double-jeopardy did not bar new trial where mistrial declared if judge could not be neutral. State v. Logory Appellate Division, A-3582-04T3, October 19, 2006, not approved for publication.
Law Division decision that the retrial of the defendant in the Municipal Court on charges of driving while intoxicated and making an improper lane change was not a double-jeopardy violation affirmed; the first Municipal Court judge declared a mistrial sua sponte because he no longer could be neutral and detached in light of defense counsel’s conduct; at the retrial, the second Municipal Court judge convicted the defendant of both charges; the Law Division rejected the defendant’s double-jeopardy claim and convicted him of both charges following a trial de novo; the Appellate Division rejected the defendant’s argument that double-jeopardy principles barred his retrial because the first Municipal Court judge could have exercised reasonable alternatives to declaring a mistrial; “manifest necessity” and the “ends of public justice” required the first Municipal Court judge to recuse himself when he no longer could be fair and impartial and therefore to declare a mistrial sua sponte. Source: Facts-on-Call Order No. 20370
5. To be guilty of "fictitious reports" defendant must act with knowing mental state. State v. Taylor Law Division, Camden County, Appeal No. 02-2006, approved for publication June 20, 2006.
As a matter of first impression, the Law Division applied the “diminished capacity” statute, N.J.S.A. 2C:4-2, to the case of a defendant who, while in a hallucinatory state, had reported an offense to the police
that had not occurred, and it concluded that the State had not proved that the defendant had acted with the “knowing” mental state required by the fictitious reports statute, N.J.S.A. 2C:28-4b(1). Source: Facts-on-Call Order No. 93068
6. Effective Business Succession Planning
By Saul Simon
Business owners invest significant amounts of time and financial resources to make their enterprises successful. Quite often, due to the quick pace of day-to-day operations, planning for succession of ownership is relegated to a low-priority task. But there comes a point in the life cycle of any business when the owner is no longer able to manage the firm that he or she founded.
Because the timing of death or disability is difficult to predict, it’s prudent to have a succession plan in place now to safeguard your family’s financial well being, and to provide your business with leadership during a transition period.
A Family Affair?
One logical solution—and one that most entrepreneurs may want to choose—is to turn the reins over to their children. However, despite its emotional and intuitive appeal, the odds are stacked squarely against a business surviving a transfer down the bloodline.
According to the U.S. Small Business Administration, two-thirds of family-run enterprises fail to make the successful transition to a second generation of ownership, and less than 15% survive into the third generation. Making a successful transition even trickier are issues brought on by divorce, blended families, or rivalries among children.
The best course of action may be either to identify strong candidates within your company who can continue to run the business and provide a source of financial security for your family, or to look at the potential for selling the business to an outside party.
“You have to be realistic,” says Jack Kaewpalug, Certified Financial PlannerTM Practitioner with Lincoln Financial Advisors Corp. in Irvine, Calif. “If you’re the person who is responsible for 80% of the firm’s sales, you’ll need to identify somebody who can assume that role if you want to keep the operation going.”
Transitional Steps
Whichever course you eventually decide is right for your business, there are steps you can take now that will ease the transition.
* Groom new management. Who is best able to run the business in your absence? Perhaps your children have spent years growing up in the business and have become capable managers in their own right. If not, look to your existing management team, and make your intentions known. Be sure that candidates are capable and interested in taking over.
* Determine a value. Work with a valuation specialist to get a fair assessment of what your business might be worth. While valuation analysis may be an art as much as it is a science, you should place a value on your business in the event you decide to sell. There are several valuation methods, including book value, discounted cash flow, or you could hire a professional appraiser. If you decide to transfer the business to your children, a professional appraisal is generally required to withstand IRS scrutiny.
* Draft a buy-sell agreement. Depending on the structure of ownership, this document will be a binding agreement detailing the terms of ownership transfer between you and your offspring, you and a non-family successor, or you and your partners. Be sure to specify how the agreement will be funded. “Proceeds from a life insurance policy are frequently used as a way to fund a buy-sell arrangement,” says Kaewpalug, “Other options include loans from a bank or company earnings that are paid back through an ‘earn-out’ arrangement with your successor, whereby the loan is paid back in regular installments.
* ESOPs. If you have a large number of employees, another option is an Employee Stock Ownership Plan (ESOP), whereby a bank lends money to the ESOP to purchase your interest in the business, and the employees then buy the shares through regular payroll deductions.
Planning for succession can be an unpleasant task, although the outcome can be even more unpleasant if you fail to plan. “You’ll have a lot more options if you start to plan when things are going great,” says Kaewpalug. “What you don’t want is a situation where your family is scrambling to salvage some value from the business after you’re gone.”
Simon Financial Group
399 Thornall Street, 12th Floor
Edison, NJ 08837
Phone: (732)623.2078
Fax: (732)623.2088
www.saulsimon.com
7. Major Changes in Municipal Court - DWI, Recent DWI and Criminal Cases and the New Alcotest Breath Machine
NJSBA Annual Meeting- Borgata Resort, Atlantic City
Thursday, May 17 10:30 a.m. - noon Studio III room
Discussion of new DWI law with .08 BAC; the new 7110 breathalyzer testing machine; recent cases involving DWI or drugs; the refusal law and pending legislation; court rules to limit plea bargaining; blood test admissibility in a DWI or drug case suppression and other pre-trial motions.
Speakers:
John Menzel, Esq.
Co-Counsel, State v Chun, State v Foley
Kenneth A. Vercammen, Esq.
Past Chair, NJSBA Municipal Court Section
Hon. Marilyn E. Williams
Newark Municipal Court
Richard M. Keil, Esq.
Oakhurst
Sponsors: Municipal Court Practice Section
Criminal Law Section
General Practice Section
Young Lawyers Division
ICLE
Certified Trial Attorneys: 1.5 criminal credits pending
PA CLE: 1.5 substantive credits pending
NY CLE (Transitional/Non-transitional): 1.5 professional practice credits
One speaker will also provide updated information on the 7100 Alcotest Mark III MK breath test machine that will replace the Breathalyzer Model 900 and 900A, used in New Jersey for the past thirty years. He will also discuss the science and operation of this new breath test machine, and consider its impact on breath testing in New Jersey. This information is critical for attorneys who represent plaintiffs or defendants in DWI matters.
Materials Provided to all Attendees:
Call NJSBA at 732-249-5000 for meeting registration details
_____________________________
Our law blog- http://njlaws1.blogspot.com/
Thank you for reading our newsletter! God Bless America USA #1
We appreciate continued referrals. We want to take the time to extend to our friends and clients our sincere gratitude because it is good friends and clients that make our business grow. Client recommendation is a very important source of new clients to us. We are grateful for the recommendation of new clients. We will do our best to give all clients excellent care. We shall do our best to justify all recommendations.
"Celebrating more than 21 years of providing excellent service to clients 1985-2007" Former Prosecutor
This newsletter is produced to be sent electronically. If you know someone who would also like to receive this email newsletter, please have them email us at newsletter@njlaws.com.
Free T- shirts and soda can holders available for all current and past clients. Please come into office.
Editor's Note and Disclaimer: All materials Copyright 2007. You may pass along the information on the NJ Laws Newsletter and website, provided the name and address of the Law Office is included.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com
Admitted to practice law in New Jersey, New York, Pennsylvania, US Supreme Court and Federal District Court
ABA ELDER LAW COMMITTEE Newsletter May, 2007 ABA General Practice, Solo and Small Firm Division
Chairs - Kenneth Vercammen, Edison, NJ and Jay Foonberg, Beverly Hills, CA
In this issue:
1. Meeting Friday, May 11, 2007 12:10- 1pm
2. Medicaid, Public Benefits and Tax Numbers 2007
_____________________________
1. Meeting Friday, May 11, 2007 12:10- 1pm
Washington Court Hotel ABA Elder Law Committee meeting
Topic: Elder Law Practice- Changes in the law and ideas to Improve Your Practice by Giving Clients What They Want and Need, plus Marketing and Expanding an Elder Law Practice
, Chair's Suite
American Bar Association General Practice Section, Elder Law Committee
Chairs/ Speakers:
Jay Foonberg, Beverly Hills, CA
-Kenneth A. Vercammen, Esq. , Edison, NJ Chair- Elder Law Committee
If you are attending, email Kenneth Vercammen, Esq. at Kenv@njlaws.com
Elder Law may be the biggest practice area of your career. 50,000 baby boomers/ day turning 60 and soon to be on Medicaid and needing your help.
Topics:
New Medicaid Law 2006- Protect yourself from inaccurate advice and malpractice
Getting referrals from other professionals
The aftermath of the Terry Schiavo case.
Email newsletters
How to get more referrals and repeat business
How to manage telephone conversations with your clients
Marketing with written fee agreements
-Networking the Internet without backlash
-Ethics and marketing without violating the Rules of Professional Conduct
[Contact Kenneth Vercammen, Esq. for program information 732-572-0500]
2. Medicaid, Public Benefits and Tax Numbers 2007
By Thomas D. Begley, Jr., Esquire
Every year selected public benefits and tax numbers change. These are indexed to the cost of living. Here are some of the important numbers for 2007:
Medicaid
$1,869 Income Cap
$101,640 Maximum CSRA
$20,328 Minimum CSRA
$2,541 Maximum MMMNA
$1650 MMMNA (until July 1, 2007)
$495 Excess Shelter Allowance (until July 1, 2007)
Social Security
3.3% Social Security Increase
$623 SSI – Single
$934 SSI – Couple
$900 SGA - Disabled
$1,500 SGA – Blind
Medicare
$124 Medicare Co-Payment – NSF
$93.50 Medicare Part B Standard Premium (less than $80,000 income)
Medicare Part B –Related Premium
$106 Medicare Part B ($80,000-$100,000 income)
$124.70 Medicare Part B ($100,000-$150,000 income)
$143.40 Medicare Part B ($150,000-$200,000 income)
$162.10 Medicare Part B (more than $200,000 income)
Married and filing separate return
$143.40 Medicare Part B ($80,000-$120,000 income)
$162.10 Medicare Part B (more than $120,000
$131 Medicare Part B Deductible
$992 Medicare Part A Deductible
Tax
$12,000 Annual Gift Tax Exclusion
$125,000 Gifts to Non-Citizen Spouse
$10,450 Maximum Tax Estates and Trust
$2,000,000 Federal Estate Tax Exemption
$3,400.00 Personal Exemption *
$97,500 Max SSA Wage Base
PAAD/Senior Gold – NJ Prescription Plan
$22,572 PAAD Single Limit
$27,676 PAAD Married Limit
$32,572 Senior Gold Single Limit
$37,676 Senior Gold Married Limit
Eligible Long-Term Care Insurance
$290 40 or less
$550 more than 40 but not more than 50
$1,110 more than 50 but not more than 60
$2,950 more than 60 but not more than 70
$3,680 more than 70
*Subject to phase out for income above certain levels for various types of filers.
Begley & Bookbinder, P.C. is an Elder & Disability Law Firm with offices in Moorestown, Stone Harbor and Lawrenceville, New Jersey and can be contacted at 800-533-7227. The firm services southern and central New Jersey and eastern Pennsylvania.
_____________________________
Send us your articles & ideas
To help your practice, we feature in this newsletter edition a few articles and tips on marketing and improving service to clients. But your Editor and chairs can't do it all. Please send articles, suggestions or ideas you wish to share with others.
General Practice, Solo and Small Firm Division:
Elder Law Committee and the ESTATE PLANNING, PROBATE & TRUST COMMITTEE
Who We Are
This committee focuses on improving estate planning skills, substantive law knowledge and office procedures for the attorney who practices estate planning, probate and trust law. This committee also serves as a network resource in educating attorneys regarding Elder Law situations.
To help your practice, we feature in this newsletter edition a few articles and tips on marketing and improving service to clients. But your Editor and chairs can't do it all. Please send articles, suggestions or ideas you wish to share with others.
Let us know if you are finding any useful information or anything you can share with the other members. You will receive written credit as the source and thus you can advise your clients and friends you were published in an ABA publication. We will try to meet you needs.
We also seek articles on Elder Law, Probate, Wills, Medicaid and Marketing. Please send your marketing ideas and articles to us. You can become a published ABA author.
________________________________________
The Elder Law Committee of the ABA General Practice Division is directed towards general practitioners and more experienced elder law attorneys. The committee consistently sponsors programs at the Annual Meeting, the focus of which is shifting to advanced topics for the more experienced elder lawyer.
This committee also focuses on improving estate planning skills, substantive law knowledge and office procedures for the attorney who practices estate planning, probate and trust law. This committee also serves as a network resource in educating attorneys regarding Elder Law situations.
Kenneth Vercammen, Esq. co-Chair
Jay Foonberg, Beverly Hills Co-chair, Author of Best Sellers "How to
Start and Build a Law Practice" and "How to get and keep good clients', Beverly Hills, CA jayfoonberg@aol.com>
We will also provide tips on how to promote your law office, your practice and Personal Marketing Skills in general. It does not deal with government funded "legal services" for indigent, welfare cases.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
Kenv@njlaws.com
Chairs - Kenneth Vercammen, Edison, NJ and Jay Foonberg, Beverly Hills, CA
In this issue:
1. Meeting Friday, May 11, 2007 12:10- 1pm
2. Medicaid, Public Benefits and Tax Numbers 2007
_____________________________
1. Meeting Friday, May 11, 2007 12:10- 1pm
Washington Court Hotel ABA Elder Law Committee meeting
Topic: Elder Law Practice- Changes in the law and ideas to Improve Your Practice by Giving Clients What They Want and Need, plus Marketing and Expanding an Elder Law Practice
, Chair's Suite
American Bar Association General Practice Section, Elder Law Committee
Chairs/ Speakers:
Jay Foonberg, Beverly Hills, CA
-Kenneth A. Vercammen, Esq. , Edison, NJ Chair- Elder Law Committee
If you are attending, email Kenneth Vercammen, Esq. at Kenv@njlaws.com
Elder Law may be the biggest practice area of your career. 50,000 baby boomers/ day turning 60 and soon to be on Medicaid and needing your help.
Topics:
New Medicaid Law 2006- Protect yourself from inaccurate advice and malpractice
Getting referrals from other professionals
The aftermath of the Terry Schiavo case.
Email newsletters
How to get more referrals and repeat business
How to manage telephone conversations with your clients
Marketing with written fee agreements
-Networking the Internet without backlash
-Ethics and marketing without violating the Rules of Professional Conduct
[Contact Kenneth Vercammen, Esq. for program information 732-572-0500]
2. Medicaid, Public Benefits and Tax Numbers 2007
By Thomas D. Begley, Jr., Esquire
Every year selected public benefits and tax numbers change. These are indexed to the cost of living. Here are some of the important numbers for 2007:
Medicaid
$1,869 Income Cap
$101,640 Maximum CSRA
$20,328 Minimum CSRA
$2,541 Maximum MMMNA
$1650 MMMNA (until July 1, 2007)
$495 Excess Shelter Allowance (until July 1, 2007)
Social Security
3.3% Social Security Increase
$623 SSI – Single
$934 SSI – Couple
$900 SGA - Disabled
$1,500 SGA – Blind
Medicare
$124 Medicare Co-Payment – NSF
$93.50 Medicare Part B Standard Premium (less than $80,000 income)
Medicare Part B –Related Premium
$106 Medicare Part B ($80,000-$100,000 income)
$124.70 Medicare Part B ($100,000-$150,000 income)
$143.40 Medicare Part B ($150,000-$200,000 income)
$162.10 Medicare Part B (more than $200,000 income)
Married and filing separate return
$143.40 Medicare Part B ($80,000-$120,000 income)
$162.10 Medicare Part B (more than $120,000
$131 Medicare Part B Deductible
$992 Medicare Part A Deductible
Tax
$12,000 Annual Gift Tax Exclusion
$125,000 Gifts to Non-Citizen Spouse
$10,450 Maximum Tax Estates and Trust
$2,000,000 Federal Estate Tax Exemption
$3,400.00 Personal Exemption *
$97,500 Max SSA Wage Base
PAAD/Senior Gold – NJ Prescription Plan
$22,572 PAAD Single Limit
$27,676 PAAD Married Limit
$32,572 Senior Gold Single Limit
$37,676 Senior Gold Married Limit
Eligible Long-Term Care Insurance
$290 40 or less
$550 more than 40 but not more than 50
$1,110 more than 50 but not more than 60
$2,950 more than 60 but not more than 70
$3,680 more than 70
*Subject to phase out for income above certain levels for various types of filers.
Begley & Bookbinder, P.C. is an Elder & Disability Law Firm with offices in Moorestown, Stone Harbor and Lawrenceville, New Jersey and can be contacted at 800-533-7227. The firm services southern and central New Jersey and eastern Pennsylvania.
_____________________________
Send us your articles & ideas
To help your practice, we feature in this newsletter edition a few articles and tips on marketing and improving service to clients. But your Editor and chairs can't do it all. Please send articles, suggestions or ideas you wish to share with others.
General Practice, Solo and Small Firm Division:
Elder Law Committee and the ESTATE PLANNING, PROBATE & TRUST COMMITTEE
Who We Are
This committee focuses on improving estate planning skills, substantive law knowledge and office procedures for the attorney who practices estate planning, probate and trust law. This committee also serves as a network resource in educating attorneys regarding Elder Law situations.
To help your practice, we feature in this newsletter edition a few articles and tips on marketing and improving service to clients. But your Editor and chairs can't do it all. Please send articles, suggestions or ideas you wish to share with others.
Let us know if you are finding any useful information or anything you can share with the other members. You will receive written credit as the source and thus you can advise your clients and friends you were published in an ABA publication. We will try to meet you needs.
We also seek articles on Elder Law, Probate, Wills, Medicaid and Marketing. Please send your marketing ideas and articles to us. You can become a published ABA author.
________________________________________
The Elder Law Committee of the ABA General Practice Division is directed towards general practitioners and more experienced elder law attorneys. The committee consistently sponsors programs at the Annual Meeting, the focus of which is shifting to advanced topics for the more experienced elder lawyer.
This committee also focuses on improving estate planning skills, substantive law knowledge and office procedures for the attorney who practices estate planning, probate and trust law. This committee also serves as a network resource in educating attorneys regarding Elder Law situations.
Kenneth Vercammen, Esq. co-Chair
Jay Foonberg, Beverly Hills Co-chair, Author of Best Sellers "How to
Start and Build a Law Practice" and "How to get and keep good clients', Beverly Hills, CA jayfoonberg@aol.com>
We will also provide tips on how to promote your law office, your practice and Personal Marketing Skills in general. It does not deal with government funded "legal services" for indigent, welfare cases.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
Kenv@njlaws.com
Kenneth Vercammen's NJ Laws email newsletter E243
April 25, 2007
In this issue:
1. Real Estate Sales
2. Yearly Insurance Review
3 DWI suppression affirmed where reasons for ordering sobriety test not "reasonable suspicion."
4. Defendant can be guilty of .08 DWI even though Breath machine calibrated at .10 level
1. Real Estate Sales
To better serve our Probate and Senior citizen clients, Kenneth Vercammen has taken and passed the NJ Real Estate Salesperson test. The examination consists of numerous questions taken over a 4 hour period. Mr. Vercammen is now also a licensed real estate agent, is affiliated with Century 21, John Anthony Agency on 1815 Oak Tree Rd., Edison, NJ. Century 21 is one of the largest real estate agencies in the country. http://www.century21johnanthony.com/
If you will be selling a house, please give Kenneth Vercammen a call. Do not pay a 6% commission, but also don't rely on a 2% agency that merely lists your home on the internet, then expects you to do all the work.
SELLERS INFORMATION SHEET
The sale of a home is probably the largest transaction a person will ever undertake. Careful consideration should be given to the technical difficulties involved in the transfer.
The Contract of Sale
A Contract of Sale is an agreement for the purchase and sale of real estate. This is the most important document in any real estate transaction because it establishes the respective rights and responsibilities of the purchaser and the seller.
Since the Contract of Sale is important and legally binding New Jersey requires a 3 day attorney review period on Contracts prepared by a realtor. Please read the contract before signing. If you have any questions, please ask your real estate agent. If there are any clauses you want added, such as the house sale "As is", make sure they are added to the Contract before signing.
The 3 day attorney review period is to protect the buyer and seller from being forever bound by a contract without them receiving the benefit of legal advice. You only have three days to have your attorney review the contract and make the appropriate changes. Remember that once a Contract is signed and in final form after 3 days, your rights and obligations are fixed concerning the transaction. Your attorney will no longer have the opportunity to structure the Contract to meet your objectives.
Read and Understand the Contract Before Signing your Contract of Sale
Perhaps the seller may want to retain possession of the property for some time in order to find new accommodations. You should make sure these clauses are included in the contract defining such rights prior to signing. Never sign a contract involving the sale or purchase of real estate until you have done the following:
1. read the entire contract
2. written down your questions and posed them to your realtor
3. made sure all your requested clauses are included, such as the house being sold "as is"
These are only a few matters usually covered in the contract. However, they illustrate the variety of terms and conditions to be considered when you enter into such a transaction.
FEE AGREEMENT BY THE SELLER'S ATTORNEY
The seller's attorney should provide the seller with a written Fee Agreement in accordance with the requirements of the Rules of Professional Conduct. Please do not be put off by the formality of this letter as it is for your protection as a consumer of legal services.
Legal fees for sales vary. We still charge a flat rate of $800 plus any costs for a simple real estate house sale where the realtor prepares the contract.
We anticipate the following will be performed by your attorney in a real estate sale:
1. Review and analyze the contract of sale during attorney review after both buyer and seller sign the contract.
2. Recommend revisions to contract if needed. However, the seller should never sign the contract if it is missing clauses or language needed by the seller.
3. Initial Office consultation if requested with client after contract is signed by both buyer and seller;
4. Request from the Seller back title, including a photocopy of the Deed, survey, title policy and mortgage payoff statement.
5. Preparation of fax letter of representation to buyer's attorney
6. Opening of file
7. Prepare Representation statement to client with request for Seller's Information Sheet
8. Review old Deed, survey
9. Forward Deed, survey, title policy to the purchaser's attorney, thus expediting the search and survey process.
10. Three (3) free calls with client
11. Three (3) telephone calls with buyers attorney and other individuals
12. Three (3) correspondence to and from buyers attorney and clients
13. Review home inspection report
14. Review other documents supplied by client and buyer's attorney;
15. Work with the purchaser's attorney in resolving possession and closing date.
16. Remind the seller to contact their mortgage company and equity loan to obtain a written payoff/ balance due on their mortgage.
17. Review Title Binder and Judgment Searches, if applicable
18. Review RESPA pre-closing, if applicable
19. Preparation of Deed, fax to buyer's attorney
20. Preparation of Affidavit of Title, fax to buyer's attorney
21. Cooperate with the purchaser's attorney in preparing the final closing statement.
22. Review the Respa, which is the Federal Real Estate Settlement Procedure Statement/ Amounts paid and to be received
23. Represent you at the closing.
24. Attend closing, execute Deed, execute Affidavit of Title
25. Assist in Preparation of 1099 tax form
26. Offer sound legal advice to client;
27. Preparation of End of Case Letter and client questionnaire.
28. Make available to client in office upon request free client case folder, Real Estate brochure, Website brochure, and other information brochures on Wills and Power of Attorney;
29. Free Brochures provided on other legal topics such as Car Insurance Rights, Worker's Comp,
30. Free subscription to monthly e-mail newsletter. Provide your email address.
31. 3 free telephone calls during the 2 years after the closing on Probate, Wills and non real estate matters.
32. Invitation to client community events.
33. Free Magnet, Keychain, Pen upon request in the office
Costs are items such as filing and recording fees, Certified or Express postage and other out of pocket expenses.
This fee does not include costs or legal fees if there are judgments against the property, probate issues, defects in title or other work requested to be performed. If this closing does not take place, you will only be responsible for the legal fees and costs incurred.
Work with your Realtor
Your realtor is a highly trained licensed professional. Their goal is to help you through this closing. They perform substantial work and earn the commissions of between $8,000- $16,000. In order to keep your legal fees down, you should be calling you realtor with routine questions regarding the closing. We have learned by past experience if you, your realtor or you family call your attorney's office every day, these calls are not included in the $800 fee, and there will be a charge for excess calls. The buyer is entitled to obtain a termite inspection and home inspection. Inspections are scheduled by the realtors. If the buyer requests repairs after the home inspection report is done, speak with your realtor first.
The seller is responsible for obtaining the smoke detector certificate, plus municipal certificate of occupancy if required by your town. Discuss these with your realtor. Please also arrange the walk through with your realtor.
Closing date is approximate
You should understand that the proposed closing date in the Contract is an approximate closing date. The actual closing depends upon the buyer's mortgage company issuing a commitment and a mortgage check. We do not set the closing date, that is set by the buyer's attorney. The realtor should be calling the buyer's attorney to determine time of closing and directions to the closing, not our office.
If Seller fails to timely obtain a written mortgage payoff statement, there will be an additional charge of $100.00 for the Seller's attorney to obtain the written payoff statement.
SELLERS INFORMATION SHEET- To be filled out by seller and returned to seller's attorney
KENNETH VERCAMMEN & ASSOCIATES, PC
1. SELLERS NAME: (as it appears on deed)
___________________________________________________________
2. Real Estate being Sold: Lot No. _________ Block No. __________
Address: __________________________________________
3. Present Mortgage Company: _____________________________
Address: ___________________________________________
Loan No. ___________________ 800 Telephone No. ____________
(Provide copy of payoff amount)
4. Other Mortgages, including Bridge Loans or Home Equity:
Name of Mortgage Company: _____________________________
Address: __________________________________________
Loan No. __________________ 800 Telephone No. ____________
(Obtain written copy of payoff amount from bank, a verbal payoff will not be good enough)
5. Social Security Number: (H) ________________ (W) ___________
6. Is any Seller age 62 or over? If so, name and date of birth: _________
7. Name, Address, Telephone number of Condominium Association, if any
_______________________________________________________
8. Type of Fuel: Gas ___________________ Oil _______________
PLEASE ATTACH A COPY OF TITLE INSURANCE, SURVEY, & DEED (not original)
9. Marriage Information:
Date of Marriage __________ Maiden or Prior Name(s) __________
Prior Marriages ________________________
(copy of Final Judgment of Divorce needed, not original)
10. Address After Property Sale: _____________________________
2. Yearly Insurance Review
By Ray Pavese & Mike McCormick
Every year you should review your insurance policies to make sure you still have a policy that
meets your needs, as well as the needs of your family members and
loved ones.
One of the policies that most often gets overlooked is the life
insurance policy. Since this is often a long-term policy, most
insured individuals assume they are stuck with the same policy,
no matter what. Usually this is not the case, although it will
depend on your policy and company as to whether you receive
penalties when changing your insurance.
Even if penalties occur, changing your life insurance policy may
be essential to keeping up with your family's financial needs for
the future.
If you don't review your life insurance policy every year, you
should at least review your policy under these circumstances:
* Marriage/Divorce - Needs change depending on your marital
status. Keep this in mind as things change in your life. Even if
you don't want to change the value of your policy, you probably
want to change the beneficiary.
* Children - If you ask the majority of life insurance agents,
the major reason for changing a life insurance policy is because
of children. This is because many adults never believe they will
need extra money after death until they realize that they will
have someone preceding them in death. Children will need money
for basic food and shelter until they are 18 and possibly for a
future college fund as well. Keep that in mind, and tell others
you know that may be affected.
* An Illness - Although waiting to change your insurance policy
until you have a long-term illness will mean paying higher
premiums, it is best to at least review your policy limitations
and make necessary changes if you find out you have a potentially
life threatening illness.
If you have questions regarding a change you would like to make
on your life insurance policy, feel free to contact me anytime.
Sincerely,
Ray Pavese & Mike McCormick
Pavese-McCormick Agency, Inc.
mikem@pavesemccormick.com
______________________________
3 DWI suppression affirmed where reasons for ordering sobriety test not "reasonable suspicion." State v. Lord Appellate Division, A-3228-05T2, October 5, 2006, not approved for publication.
Law Division order granting the defendant’s motion to suppress evidence of the results of his sobriety tests affirmed; the police officer observed the defendant’s car cross both the shoulder and center lines, and he then activated his video recorder and followed the defendant’s car for about two and a half minutes; the officer testified that, during that time, the defendant came to a full stop several times, properly used his signals when executing turns, did not speed, and properly stopped his car when the officer signaled; there was no question that the initial motor vehicle violation allowed the officer to stop the defendant; however, the Law Division properly concluded that the reasons that the officer gave for ordering sobriety tests did not give rise to a “reasonable suspicion” that the defendant had been driving while intoxicated; although the defendant had been observed violating the motor vehicle laws, his behavior did not demonstrate any further violation, and he did not exhibit any physical impairment. Source: Facts-on-Call Order No. 20296
4. Defendant can be guilty of .08 DWI even though Breath machine calibrated at .10 level. State v. Pearson Appellate Division, A-1344-05T2, September 22, 2006, not approved for publication.
Conviction following a trial de novo of driving while intoxicated affirmed; the defendant registered blood-alcohol-content levels of 0.08 and 0.09 on two Breathalyzer tests; the defendant asserted that the State had not established that the Breathalyzer was in proper working order because it was calibrated for accuracy at a 0.10 blood-alcohol-content level rather than a 0.08 level; the State Police protocols were not changed when N.J.S.A. 39:4-50 was amended to reduce the blood-alcohol-content level needed to establish a per se violation from 0.10 to 0.08, and the protocols require periodic testing with a simulator solution to establish accuracy at the 0.10 level; there was no merit to the defendant’s argument in light of the well-established principle that a Breathalyzer that is tested pursuant to the protocols and satisfies them is in proper working order and thus satisfies the State’s burden of proving that the results from the Breathalyzer, if correctly operated by a qualified operator, are reliable. Source: Facts-on-Call Order No. 20227
_____________________________
Our law blog- http://njlaws1.blogspot.com/
Thank you for reading our newsletter! God Bless America USA #1
We appreciate continued referrals. We want to take the time to extend to our friends and clients our sincere gratitude because it is good friends and clients that make our business grow. Client recommendation is a very important source of new clients to us. We are grateful for the recommendation of new clients. We will do our best to give all clients excellent care. We shall do our best to justify all recommendations.
"Celebrating more than 21 years of providing excellent service to clients 1985-2007" Former Prosecutor
This newsletter is produced to be sent electronically. If you know someone who would also like to receive this email newsletter, please have them email us at newsletter@njlaws.com.
Free T- shirts and soda can holders available for all current and past clients. Please come into office.
Editor's Note and Disclaimer: All materials Copyright 2007. You may pass along the information on the NJ Laws Newsletter and website, provided the name and address of the Law Office is included.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com
Admitted to practice law in New Jersey, New York, Pennsylvania, US Supreme Court and Federal District Court
April 25, 2007
In this issue:
1. Real Estate Sales
2. Yearly Insurance Review
3 DWI suppression affirmed where reasons for ordering sobriety test not "reasonable suspicion."
4. Defendant can be guilty of .08 DWI even though Breath machine calibrated at .10 level
1. Real Estate Sales
To better serve our Probate and Senior citizen clients, Kenneth Vercammen has taken and passed the NJ Real Estate Salesperson test. The examination consists of numerous questions taken over a 4 hour period. Mr. Vercammen is now also a licensed real estate agent, is affiliated with Century 21, John Anthony Agency on 1815 Oak Tree Rd., Edison, NJ. Century 21 is one of the largest real estate agencies in the country. http://www.century21johnanthony.com/
If you will be selling a house, please give Kenneth Vercammen a call. Do not pay a 6% commission, but also don't rely on a 2% agency that merely lists your home on the internet, then expects you to do all the work.
SELLERS INFORMATION SHEET
The sale of a home is probably the largest transaction a person will ever undertake. Careful consideration should be given to the technical difficulties involved in the transfer.
The Contract of Sale
A Contract of Sale is an agreement for the purchase and sale of real estate. This is the most important document in any real estate transaction because it establishes the respective rights and responsibilities of the purchaser and the seller.
Since the Contract of Sale is important and legally binding New Jersey requires a 3 day attorney review period on Contracts prepared by a realtor. Please read the contract before signing. If you have any questions, please ask your real estate agent. If there are any clauses you want added, such as the house sale "As is", make sure they are added to the Contract before signing.
The 3 day attorney review period is to protect the buyer and seller from being forever bound by a contract without them receiving the benefit of legal advice. You only have three days to have your attorney review the contract and make the appropriate changes. Remember that once a Contract is signed and in final form after 3 days, your rights and obligations are fixed concerning the transaction. Your attorney will no longer have the opportunity to structure the Contract to meet your objectives.
Read and Understand the Contract Before Signing your Contract of Sale
Perhaps the seller may want to retain possession of the property for some time in order to find new accommodations. You should make sure these clauses are included in the contract defining such rights prior to signing. Never sign a contract involving the sale or purchase of real estate until you have done the following:
1. read the entire contract
2. written down your questions and posed them to your realtor
3. made sure all your requested clauses are included, such as the house being sold "as is"
These are only a few matters usually covered in the contract. However, they illustrate the variety of terms and conditions to be considered when you enter into such a transaction.
FEE AGREEMENT BY THE SELLER'S ATTORNEY
The seller's attorney should provide the seller with a written Fee Agreement in accordance with the requirements of the Rules of Professional Conduct. Please do not be put off by the formality of this letter as it is for your protection as a consumer of legal services.
Legal fees for sales vary. We still charge a flat rate of $800 plus any costs for a simple real estate house sale where the realtor prepares the contract.
We anticipate the following will be performed by your attorney in a real estate sale:
1. Review and analyze the contract of sale during attorney review after both buyer and seller sign the contract.
2. Recommend revisions to contract if needed. However, the seller should never sign the contract if it is missing clauses or language needed by the seller.
3. Initial Office consultation if requested with client after contract is signed by both buyer and seller;
4. Request from the Seller back title, including a photocopy of the Deed, survey, title policy and mortgage payoff statement.
5. Preparation of fax letter of representation to buyer's attorney
6. Opening of file
7. Prepare Representation statement to client with request for Seller's Information Sheet
8. Review old Deed, survey
9. Forward Deed, survey, title policy to the purchaser's attorney, thus expediting the search and survey process.
10. Three (3) free calls with client
11. Three (3) telephone calls with buyers attorney and other individuals
12. Three (3) correspondence to and from buyers attorney and clients
13. Review home inspection report
14. Review other documents supplied by client and buyer's attorney;
15. Work with the purchaser's attorney in resolving possession and closing date.
16. Remind the seller to contact their mortgage company and equity loan to obtain a written payoff/ balance due on their mortgage.
17. Review Title Binder and Judgment Searches, if applicable
18. Review RESPA pre-closing, if applicable
19. Preparation of Deed, fax to buyer's attorney
20. Preparation of Affidavit of Title, fax to buyer's attorney
21. Cooperate with the purchaser's attorney in preparing the final closing statement.
22. Review the Respa, which is the Federal Real Estate Settlement Procedure Statement/ Amounts paid and to be received
23. Represent you at the closing.
24. Attend closing, execute Deed, execute Affidavit of Title
25. Assist in Preparation of 1099 tax form
26. Offer sound legal advice to client;
27. Preparation of End of Case Letter and client questionnaire.
28. Make available to client in office upon request free client case folder, Real Estate brochure, Website brochure, and other information brochures on Wills and Power of Attorney;
29. Free Brochures provided on other legal topics such as Car Insurance Rights, Worker's Comp,
30. Free subscription to monthly e-mail newsletter. Provide your email address.
31. 3 free telephone calls during the 2 years after the closing on Probate, Wills and non real estate matters.
32. Invitation to client community events.
33. Free Magnet, Keychain, Pen upon request in the office
Costs are items such as filing and recording fees, Certified or Express postage and other out of pocket expenses.
This fee does not include costs or legal fees if there are judgments against the property, probate issues, defects in title or other work requested to be performed. If this closing does not take place, you will only be responsible for the legal fees and costs incurred.
Work with your Realtor
Your realtor is a highly trained licensed professional. Their goal is to help you through this closing. They perform substantial work and earn the commissions of between $8,000- $16,000. In order to keep your legal fees down, you should be calling you realtor with routine questions regarding the closing. We have learned by past experience if you, your realtor or you family call your attorney's office every day, these calls are not included in the $800 fee, and there will be a charge for excess calls. The buyer is entitled to obtain a termite inspection and home inspection. Inspections are scheduled by the realtors. If the buyer requests repairs after the home inspection report is done, speak with your realtor first.
The seller is responsible for obtaining the smoke detector certificate, plus municipal certificate of occupancy if required by your town. Discuss these with your realtor. Please also arrange the walk through with your realtor.
Closing date is approximate
You should understand that the proposed closing date in the Contract is an approximate closing date. The actual closing depends upon the buyer's mortgage company issuing a commitment and a mortgage check. We do not set the closing date, that is set by the buyer's attorney. The realtor should be calling the buyer's attorney to determine time of closing and directions to the closing, not our office.
If Seller fails to timely obtain a written mortgage payoff statement, there will be an additional charge of $100.00 for the Seller's attorney to obtain the written payoff statement.
SELLERS INFORMATION SHEET- To be filled out by seller and returned to seller's attorney
KENNETH VERCAMMEN & ASSOCIATES, PC
1. SELLERS NAME: (as it appears on deed)
___________________________________________________________
2. Real Estate being Sold: Lot No. _________ Block No. __________
Address: __________________________________________
3. Present Mortgage Company: _____________________________
Address: ___________________________________________
Loan No. ___________________ 800 Telephone No. ____________
(Provide copy of payoff amount)
4. Other Mortgages, including Bridge Loans or Home Equity:
Name of Mortgage Company: _____________________________
Address: __________________________________________
Loan No. __________________ 800 Telephone No. ____________
(Obtain written copy of payoff amount from bank, a verbal payoff will not be good enough)
5. Social Security Number: (H) ________________ (W) ___________
6. Is any Seller age 62 or over? If so, name and date of birth: _________
7. Name, Address, Telephone number of Condominium Association, if any
_______________________________________________________
8. Type of Fuel: Gas ___________________ Oil _______________
PLEASE ATTACH A COPY OF TITLE INSURANCE, SURVEY, & DEED (not original)
9. Marriage Information:
Date of Marriage __________ Maiden or Prior Name(s) __________
Prior Marriages ________________________
(copy of Final Judgment of Divorce needed, not original)
10. Address After Property Sale: _____________________________
2. Yearly Insurance Review
By Ray Pavese & Mike McCormick
Every year you should review your insurance policies to make sure you still have a policy that
meets your needs, as well as the needs of your family members and
loved ones.
One of the policies that most often gets overlooked is the life
insurance policy. Since this is often a long-term policy, most
insured individuals assume they are stuck with the same policy,
no matter what. Usually this is not the case, although it will
depend on your policy and company as to whether you receive
penalties when changing your insurance.
Even if penalties occur, changing your life insurance policy may
be essential to keeping up with your family's financial needs for
the future.
If you don't review your life insurance policy every year, you
should at least review your policy under these circumstances:
* Marriage/Divorce - Needs change depending on your marital
status. Keep this in mind as things change in your life. Even if
you don't want to change the value of your policy, you probably
want to change the beneficiary.
* Children - If you ask the majority of life insurance agents,
the major reason for changing a life insurance policy is because
of children. This is because many adults never believe they will
need extra money after death until they realize that they will
have someone preceding them in death. Children will need money
for basic food and shelter until they are 18 and possibly for a
future college fund as well. Keep that in mind, and tell others
you know that may be affected.
* An Illness - Although waiting to change your insurance policy
until you have a long-term illness will mean paying higher
premiums, it is best to at least review your policy limitations
and make necessary changes if you find out you have a potentially
life threatening illness.
If you have questions regarding a change you would like to make
on your life insurance policy, feel free to contact me anytime.
Sincerely,
Ray Pavese & Mike McCormick
Pavese-McCormick Agency, Inc.
mikem@pavesemccormick.com
______________________________
3 DWI suppression affirmed where reasons for ordering sobriety test not "reasonable suspicion." State v. Lord Appellate Division, A-3228-05T2, October 5, 2006, not approved for publication.
Law Division order granting the defendant’s motion to suppress evidence of the results of his sobriety tests affirmed; the police officer observed the defendant’s car cross both the shoulder and center lines, and he then activated his video recorder and followed the defendant’s car for about two and a half minutes; the officer testified that, during that time, the defendant came to a full stop several times, properly used his signals when executing turns, did not speed, and properly stopped his car when the officer signaled; there was no question that the initial motor vehicle violation allowed the officer to stop the defendant; however, the Law Division properly concluded that the reasons that the officer gave for ordering sobriety tests did not give rise to a “reasonable suspicion” that the defendant had been driving while intoxicated; although the defendant had been observed violating the motor vehicle laws, his behavior did not demonstrate any further violation, and he did not exhibit any physical impairment. Source: Facts-on-Call Order No. 20296
4. Defendant can be guilty of .08 DWI even though Breath machine calibrated at .10 level. State v. Pearson Appellate Division, A-1344-05T2, September 22, 2006, not approved for publication.
Conviction following a trial de novo of driving while intoxicated affirmed; the defendant registered blood-alcohol-content levels of 0.08 and 0.09 on two Breathalyzer tests; the defendant asserted that the State had not established that the Breathalyzer was in proper working order because it was calibrated for accuracy at a 0.10 blood-alcohol-content level rather than a 0.08 level; the State Police protocols were not changed when N.J.S.A. 39:4-50 was amended to reduce the blood-alcohol-content level needed to establish a per se violation from 0.10 to 0.08, and the protocols require periodic testing with a simulator solution to establish accuracy at the 0.10 level; there was no merit to the defendant’s argument in light of the well-established principle that a Breathalyzer that is tested pursuant to the protocols and satisfies them is in proper working order and thus satisfies the State’s burden of proving that the results from the Breathalyzer, if correctly operated by a qualified operator, are reliable. Source: Facts-on-Call Order No. 20227
_____________________________
Our law blog- http://njlaws1.blogspot.com/
Thank you for reading our newsletter! God Bless America USA #1
We appreciate continued referrals. We want to take the time to extend to our friends and clients our sincere gratitude because it is good friends and clients that make our business grow. Client recommendation is a very important source of new clients to us. We are grateful for the recommendation of new clients. We will do our best to give all clients excellent care. We shall do our best to justify all recommendations.
"Celebrating more than 21 years of providing excellent service to clients 1985-2007" Former Prosecutor
This newsletter is produced to be sent electronically. If you know someone who would also like to receive this email newsletter, please have them email us at newsletter@njlaws.com.
Free T- shirts and soda can holders available for all current and past clients. Please come into office.
Editor's Note and Disclaimer: All materials Copyright 2007. You may pass along the information on the NJ Laws Newsletter and website, provided the name and address of the Law Office is included.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com
Admitted to practice law in New Jersey, New York, Pennsylvania, US Supreme Court and Federal District Court
Kenneth Vercammen's NJ Laws email newsletter E243
April 25, 2007
In this issue:
1. Real Estate Sales
2. Yearly Insurance Review
3 DWI suppression affirmed where reasons for ordering sobriety test not "reasonable suspicion."
4. Defendant can be guilty of .08 DWI even though Breath machine calibrated at .10 level
1. Real Estate Sales
To better serve our Probate and Senior citizen clients, Kenneth Vercammen has taken and passed the NJ Real Estate Salesperson test. The examination consists of numerous questions taken over a 4 hour period. Mr. Vercammen is now also a licensed real estate agent, is affiliated with Century 21, John Anthony Agency on 1815 Oak Tree Rd., Edison, NJ. Century 21 is one of the largest real estate agencies in the country. http://www.century21johnanthony.com/
If you will be selling a house, please give Kenneth Vercammen a call. Do not pay a 6% commission, but also don't rely on a 2% agency that merely lists your home on the internet, then expects you to do all the work.
SELLERS INFORMATION SHEET
The sale of a home is probably the largest transaction a person will ever undertake. Careful consideration should be given to the technical difficulties involved in the transfer.
The Contract of Sale
A Contract of Sale is an agreement for the purchase and sale of real estate. This is the most important document in any real estate transaction because it establishes the respective rights and responsibilities of the purchaser and the seller.
Since the Contract of Sale is important and legally binding New Jersey requires a 3 day attorney review period on Contracts prepared by a realtor. Please read the contract before signing. If you have any questions, please ask your real estate agent. If there are any clauses you want added, such as the house sale "As is", make sure they are added to the Contract before signing.
The 3 day attorney review period is to protect the buyer and seller from being forever bound by a contract without them receiving the benefit of legal advice. You only have three days to have your attorney review the contract and make the appropriate changes. Remember that once a Contract is signed and in final form after 3 days, your rights and obligations are fixed concerning the transaction. Your attorney will no longer have the opportunity to structure the Contract to meet your objectives.
Read and Understand the Contract Before Signing your Contract of Sale
Perhaps the seller may want to retain possession of the property for some time in order to find new accommodations. You should make sure these clauses are included in the contract defining such rights prior to signing. Never sign a contract involving the sale or purchase of real estate until you have done the following:
1. read the entire contract
2. written down your questions and posed them to your realtor
3. made sure all your requested clauses are included, such as the house being sold "as is"
These are only a few matters usually covered in the contract. However, they illustrate the variety of terms and conditions to be considered when you enter into such a transaction.
FEE AGREEMENT BY THE SELLER'S ATTORNEY
The seller's attorney should provide the seller with a written Fee Agreement in accordance with the requirements of the Rules of Professional Conduct. Please do not be put off by the formality of this letter as it is for your protection as a consumer of legal services.
Legal fees for sales vary. We still charge a flat rate of $800 plus any costs for a simple real estate house sale where the realtor prepares the contract.
We anticipate the following will be performed by your attorney in a real estate sale:
1. Review and analyze the contract of sale during attorney review after both buyer and seller sign the contract.
2. Recommend revisions to contract if needed. However, the seller should never sign the contract if it is missing clauses or language needed by the seller.
3. Initial Office consultation if requested with client after contract is signed by both buyer and seller;
4. Request from the Seller back title, including a photocopy of the Deed, survey, title policy and mortgage payoff statement.
5. Preparation of fax letter of representation to buyer's attorney
6. Opening of file
7. Prepare Representation statement to client with request for Seller's Information Sheet
8. Review old Deed, survey
9. Forward Deed, survey, title policy to the purchaser's attorney, thus expediting the search and survey process.
10. Three (3) free calls with client
11. Three (3) telephone calls with buyers attorney and other individuals
12. Three (3) correspondence to and from buyers attorney and clients
13. Review home inspection report
14. Review other documents supplied by client and buyer's attorney;
15. Work with the purchaser's attorney in resolving possession and closing date.
16. Remind the seller to contact their mortgage company and equity loan to obtain a written payoff/ balance due on their mortgage.
17. Review Title Binder and Judgment Searches, if applicable
18. Review RESPA pre-closing, if applicable
19. Preparation of Deed, fax to buyer's attorney
20. Preparation of Affidavit of Title, fax to buyer's attorney
21. Cooperate with the purchaser's attorney in preparing the final closing statement.
22. Review the Respa, which is the Federal Real Estate Settlement Procedure Statement/ Amounts paid and to be received
23. Represent you at the closing.
24. Attend closing, execute Deed, execute Affidavit of Title
25. Assist in Preparation of 1099 tax form
26. Offer sound legal advice to client;
27. Preparation of End of Case Letter and client questionnaire.
28. Make available to client in office upon request free client case folder, Real Estate brochure, Website brochure, and other information brochures on Wills and Power of Attorney;
29. Free Brochures provided on other legal topics such as Car Insurance Rights, Worker's Comp,
30. Free subscription to monthly e-mail newsletter. Provide your email address.
31. 3 free telephone calls during the 2 years after the closing on Probate, Wills and non real estate matters.
32. Invitation to client community events.
33. Free Magnet, Keychain, Pen upon request in the office
Costs are items such as filing and recording fees, Certified or Express postage and other out of pocket expenses.
This fee does not include costs or legal fees if there are judgments against the property, probate issues, defects in title or other work requested to be performed. If this closing does not take place, you will only be responsible for the legal fees and costs incurred.
Work with your Realtor
Your realtor is a highly trained licensed professional. Their goal is to help you through this closing. They perform substantial work and earn the commissions of between $8,000- $16,000. In order to keep your legal fees down, you should be calling you realtor with routine questions regarding the closing. We have learned by past experience if you, your realtor or you family call your attorney's office every day, these calls are not included in the $800 fee, and there will be a charge for excess calls. The buyer is entitled to obtain a termite inspection and home inspection. Inspections are scheduled by the realtors. If the buyer requests repairs after the home inspection report is done, speak with your realtor first.
The seller is responsible for obtaining the smoke detector certificate, plus municipal certificate of occupancy if required by your town. Discuss these with your realtor. Please also arrange the walk through with your realtor.
Closing date is approximate
You should understand that the proposed closing date in the Contract is an approximate closing date. The actual closing depends upon the buyer's mortgage company issuing a commitment and a mortgage check. We do not set the closing date, that is set by the buyer's attorney. The realtor should be calling the buyer's attorney to determine time of closing and directions to the closing, not our office.
If Seller fails to timely obtain a written mortgage payoff statement, there will be an additional charge of $100.00 for the Seller's attorney to obtain the written payoff statement.
SELLERS INFORMATION SHEET- To be filled out by seller and returned to seller's attorney
KENNETH VERCAMMEN & ASSOCIATES, PC
1. SELLERS NAME: (as it appears on deed)
___________________________________________________________
2. Real Estate being Sold: Lot No. _________ Block No. __________
Address: __________________________________________
3. Present Mortgage Company: _____________________________
Address: ___________________________________________
Loan No. ___________________ 800 Telephone No. ____________
(Provide copy of payoff amount)
4. Other Mortgages, including Bridge Loans or Home Equity:
Name of Mortgage Company: _____________________________
Address: __________________________________________
Loan No. __________________ 800 Telephone No. ____________
(Obtain written copy of payoff amount from bank, a verbal payoff will not be good enough)
5. Social Security Number: (H) ________________ (W) ___________
6. Is any Seller age 62 or over? If so, name and date of birth: _________
7. Name, Address, Telephone number of Condominium Association, if any
_______________________________________________________
8. Type of Fuel: Gas ___________________ Oil _______________
PLEASE ATTACH A COPY OF TITLE INSURANCE, SURVEY, & DEED (not original)
9. Marriage Information:
Date of Marriage __________ Maiden or Prior Name(s) __________
Prior Marriages ________________________
(copy of Final Judgment of Divorce needed, not original)
10. Address After Property Sale: _____________________________
2. Yearly Insurance Review
By Ray Pavese & Mike McCormick
Every year you should review your insurance policies to make sure you still have a policy that
meets your needs, as well as the needs of your family members and
loved ones.
One of the policies that most often gets overlooked is the life
insurance policy. Since this is often a long-term policy, most
insured individuals assume they are stuck with the same policy,
no matter what. Usually this is not the case, although it will
depend on your policy and company as to whether you receive
penalties when changing your insurance.
Even if penalties occur, changing your life insurance policy may
be essential to keeping up with your family's financial needs for
the future.
If you don't review your life insurance policy every year, you
should at least review your policy under these circumstances:
* Marriage/Divorce - Needs change depending on your marital
status. Keep this in mind as things change in your life. Even if
you don't want to change the value of your policy, you probably
want to change the beneficiary.
* Children - If you ask the majority of life insurance agents,
the major reason for changing a life insurance policy is because
of children. This is because many adults never believe they will
need extra money after death until they realize that they will
have someone preceding them in death. Children will need money
for basic food and shelter until they are 18 and possibly for a
future college fund as well. Keep that in mind, and tell others
you know that may be affected.
* An Illness - Although waiting to change your insurance policy
until you have a long-term illness will mean paying higher
premiums, it is best to at least review your policy limitations
and make necessary changes if you find out you have a potentially
life threatening illness.
If you have questions regarding a change you would like to make
on your life insurance policy, feel free to contact me anytime.
Sincerely,
Ray Pavese & Mike McCormick
Pavese-McCormick Agency, Inc.
mikem@pavesemccormick.com
______________________________
3 DWI suppression affirmed where reasons for ordering sobriety test not "reasonable suspicion." State v. Lord Appellate Division, A-3228-05T2, October 5, 2006, not approved for publication.
Law Division order granting the defendant’s motion to suppress evidence of the results of his sobriety tests affirmed; the police officer observed the defendant’s car cross both the shoulder and center lines, and he then activated his video recorder and followed the defendant’s car for about two and a half minutes; the officer testified that, during that time, the defendant came to a full stop several times, properly used his signals when executing turns, did not speed, and properly stopped his car when the officer signaled; there was no question that the initial motor vehicle violation allowed the officer to stop the defendant; however, the Law Division properly concluded that the reasons that the officer gave for ordering sobriety tests did not give rise to a “reasonable suspicion” that the defendant had been driving while intoxicated; although the defendant had been observed violating the motor vehicle laws, his behavior did not demonstrate any further violation, and he did not exhibit any physical impairment. Source: Facts-on-Call Order No. 20296
4. Defendant can be guilty of .08 DWI even though Breath machine calibrated at .10 level. State v. Pearson Appellate Division, A-1344-05T2, September 22, 2006, not approved for publication.
Conviction following a trial de novo of driving while intoxicated affirmed; the defendant registered blood-alcohol-content levels of 0.08 and 0.09 on two Breathalyzer tests; the defendant asserted that the State had not established that the Breathalyzer was in proper working order because it was calibrated for accuracy at a 0.10 blood-alcohol-content level rather than a 0.08 level; the State Police protocols were not changed when N.J.S.A. 39:4-50 was amended to reduce the blood-alcohol-content level needed to establish a per se violation from 0.10 to 0.08, and the protocols require periodic testing with a simulator solution to establish accuracy at the 0.10 level; there was no merit to the defendant’s argument in light of the well-established principle that a Breathalyzer that is tested pursuant to the protocols and satisfies them is in proper working order and thus satisfies the State’s burden of proving that the results from the Breathalyzer, if correctly operated by a qualified operator, are reliable. Source: Facts-on-Call Order No. 20227
_____________________________
Our law blog- http://njlaws1.blogspot.com/
Thank you for reading our newsletter! God Bless America USA #1
We appreciate continued referrals. We want to take the time to extend to our friends and clients our sincere gratitude because it is good friends and clients that make our business grow. Client recommendation is a very important source of new clients to us. We are grateful for the recommendation of new clients. We will do our best to give all clients excellent care. We shall do our best to justify all recommendations.
"Celebrating more than 21 years of providing excellent service to clients 1985-2007" Former Prosecutor
This newsletter is produced to be sent electronically. If you know someone who would also like to receive this email newsletter, please have them email us at newsletter@njlaws.com.
Free T- shirts and soda can holders available for all current and past clients. Please come into office.
Editor's Note and Disclaimer: All materials Copyright 2007. You may pass along the information on the NJ Laws Newsletter and website, provided the name and address of the Law Office is included.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com
Admitted to practice law in New Jersey, New York, Pennsylvania, US Supreme Court and Federal District Court
April 25, 2007
In this issue:
1. Real Estate Sales
2. Yearly Insurance Review
3 DWI suppression affirmed where reasons for ordering sobriety test not "reasonable suspicion."
4. Defendant can be guilty of .08 DWI even though Breath machine calibrated at .10 level
1. Real Estate Sales
To better serve our Probate and Senior citizen clients, Kenneth Vercammen has taken and passed the NJ Real Estate Salesperson test. The examination consists of numerous questions taken over a 4 hour period. Mr. Vercammen is now also a licensed real estate agent, is affiliated with Century 21, John Anthony Agency on 1815 Oak Tree Rd., Edison, NJ. Century 21 is one of the largest real estate agencies in the country. http://www.century21johnanthony.com/
If you will be selling a house, please give Kenneth Vercammen a call. Do not pay a 6% commission, but also don't rely on a 2% agency that merely lists your home on the internet, then expects you to do all the work.
SELLERS INFORMATION SHEET
The sale of a home is probably the largest transaction a person will ever undertake. Careful consideration should be given to the technical difficulties involved in the transfer.
The Contract of Sale
A Contract of Sale is an agreement for the purchase and sale of real estate. This is the most important document in any real estate transaction because it establishes the respective rights and responsibilities of the purchaser and the seller.
Since the Contract of Sale is important and legally binding New Jersey requires a 3 day attorney review period on Contracts prepared by a realtor. Please read the contract before signing. If you have any questions, please ask your real estate agent. If there are any clauses you want added, such as the house sale "As is", make sure they are added to the Contract before signing.
The 3 day attorney review period is to protect the buyer and seller from being forever bound by a contract without them receiving the benefit of legal advice. You only have three days to have your attorney review the contract and make the appropriate changes. Remember that once a Contract is signed and in final form after 3 days, your rights and obligations are fixed concerning the transaction. Your attorney will no longer have the opportunity to structure the Contract to meet your objectives.
Read and Understand the Contract Before Signing your Contract of Sale
Perhaps the seller may want to retain possession of the property for some time in order to find new accommodations. You should make sure these clauses are included in the contract defining such rights prior to signing. Never sign a contract involving the sale or purchase of real estate until you have done the following:
1. read the entire contract
2. written down your questions and posed them to your realtor
3. made sure all your requested clauses are included, such as the house being sold "as is"
These are only a few matters usually covered in the contract. However, they illustrate the variety of terms and conditions to be considered when you enter into such a transaction.
FEE AGREEMENT BY THE SELLER'S ATTORNEY
The seller's attorney should provide the seller with a written Fee Agreement in accordance with the requirements of the Rules of Professional Conduct. Please do not be put off by the formality of this letter as it is for your protection as a consumer of legal services.
Legal fees for sales vary. We still charge a flat rate of $800 plus any costs for a simple real estate house sale where the realtor prepares the contract.
We anticipate the following will be performed by your attorney in a real estate sale:
1. Review and analyze the contract of sale during attorney review after both buyer and seller sign the contract.
2. Recommend revisions to contract if needed. However, the seller should never sign the contract if it is missing clauses or language needed by the seller.
3. Initial Office consultation if requested with client after contract is signed by both buyer and seller;
4. Request from the Seller back title, including a photocopy of the Deed, survey, title policy and mortgage payoff statement.
5. Preparation of fax letter of representation to buyer's attorney
6. Opening of file
7. Prepare Representation statement to client with request for Seller's Information Sheet
8. Review old Deed, survey
9. Forward Deed, survey, title policy to the purchaser's attorney, thus expediting the search and survey process.
10. Three (3) free calls with client
11. Three (3) telephone calls with buyers attorney and other individuals
12. Three (3) correspondence to and from buyers attorney and clients
13. Review home inspection report
14. Review other documents supplied by client and buyer's attorney;
15. Work with the purchaser's attorney in resolving possession and closing date.
16. Remind the seller to contact their mortgage company and equity loan to obtain a written payoff/ balance due on their mortgage.
17. Review Title Binder and Judgment Searches, if applicable
18. Review RESPA pre-closing, if applicable
19. Preparation of Deed, fax to buyer's attorney
20. Preparation of Affidavit of Title, fax to buyer's attorney
21. Cooperate with the purchaser's attorney in preparing the final closing statement.
22. Review the Respa, which is the Federal Real Estate Settlement Procedure Statement/ Amounts paid and to be received
23. Represent you at the closing.
24. Attend closing, execute Deed, execute Affidavit of Title
25. Assist in Preparation of 1099 tax form
26. Offer sound legal advice to client;
27. Preparation of End of Case Letter and client questionnaire.
28. Make available to client in office upon request free client case folder, Real Estate brochure, Website brochure, and other information brochures on Wills and Power of Attorney;
29. Free Brochures provided on other legal topics such as Car Insurance Rights, Worker's Comp,
30. Free subscription to monthly e-mail newsletter. Provide your email address.
31. 3 free telephone calls during the 2 years after the closing on Probate, Wills and non real estate matters.
32. Invitation to client community events.
33. Free Magnet, Keychain, Pen upon request in the office
Costs are items such as filing and recording fees, Certified or Express postage and other out of pocket expenses.
This fee does not include costs or legal fees if there are judgments against the property, probate issues, defects in title or other work requested to be performed. If this closing does not take place, you will only be responsible for the legal fees and costs incurred.
Work with your Realtor
Your realtor is a highly trained licensed professional. Their goal is to help you through this closing. They perform substantial work and earn the commissions of between $8,000- $16,000. In order to keep your legal fees down, you should be calling you realtor with routine questions regarding the closing. We have learned by past experience if you, your realtor or you family call your attorney's office every day, these calls are not included in the $800 fee, and there will be a charge for excess calls. The buyer is entitled to obtain a termite inspection and home inspection. Inspections are scheduled by the realtors. If the buyer requests repairs after the home inspection report is done, speak with your realtor first.
The seller is responsible for obtaining the smoke detector certificate, plus municipal certificate of occupancy if required by your town. Discuss these with your realtor. Please also arrange the walk through with your realtor.
Closing date is approximate
You should understand that the proposed closing date in the Contract is an approximate closing date. The actual closing depends upon the buyer's mortgage company issuing a commitment and a mortgage check. We do not set the closing date, that is set by the buyer's attorney. The realtor should be calling the buyer's attorney to determine time of closing and directions to the closing, not our office.
If Seller fails to timely obtain a written mortgage payoff statement, there will be an additional charge of $100.00 for the Seller's attorney to obtain the written payoff statement.
SELLERS INFORMATION SHEET- To be filled out by seller and returned to seller's attorney
KENNETH VERCAMMEN & ASSOCIATES, PC
1. SELLERS NAME: (as it appears on deed)
___________________________________________________________
2. Real Estate being Sold: Lot No. _________ Block No. __________
Address: __________________________________________
3. Present Mortgage Company: _____________________________
Address: ___________________________________________
Loan No. ___________________ 800 Telephone No. ____________
(Provide copy of payoff amount)
4. Other Mortgages, including Bridge Loans or Home Equity:
Name of Mortgage Company: _____________________________
Address: __________________________________________
Loan No. __________________ 800 Telephone No. ____________
(Obtain written copy of payoff amount from bank, a verbal payoff will not be good enough)
5. Social Security Number: (H) ________________ (W) ___________
6. Is any Seller age 62 or over? If so, name and date of birth: _________
7. Name, Address, Telephone number of Condominium Association, if any
_______________________________________________________
8. Type of Fuel: Gas ___________________ Oil _______________
PLEASE ATTACH A COPY OF TITLE INSURANCE, SURVEY, & DEED (not original)
9. Marriage Information:
Date of Marriage __________ Maiden or Prior Name(s) __________
Prior Marriages ________________________
(copy of Final Judgment of Divorce needed, not original)
10. Address After Property Sale: _____________________________
2. Yearly Insurance Review
By Ray Pavese & Mike McCormick
Every year you should review your insurance policies to make sure you still have a policy that
meets your needs, as well as the needs of your family members and
loved ones.
One of the policies that most often gets overlooked is the life
insurance policy. Since this is often a long-term policy, most
insured individuals assume they are stuck with the same policy,
no matter what. Usually this is not the case, although it will
depend on your policy and company as to whether you receive
penalties when changing your insurance.
Even if penalties occur, changing your life insurance policy may
be essential to keeping up with your family's financial needs for
the future.
If you don't review your life insurance policy every year, you
should at least review your policy under these circumstances:
* Marriage/Divorce - Needs change depending on your marital
status. Keep this in mind as things change in your life. Even if
you don't want to change the value of your policy, you probably
want to change the beneficiary.
* Children - If you ask the majority of life insurance agents,
the major reason for changing a life insurance policy is because
of children. This is because many adults never believe they will
need extra money after death until they realize that they will
have someone preceding them in death. Children will need money
for basic food and shelter until they are 18 and possibly for a
future college fund as well. Keep that in mind, and tell others
you know that may be affected.
* An Illness - Although waiting to change your insurance policy
until you have a long-term illness will mean paying higher
premiums, it is best to at least review your policy limitations
and make necessary changes if you find out you have a potentially
life threatening illness.
If you have questions regarding a change you would like to make
on your life insurance policy, feel free to contact me anytime.
Sincerely,
Ray Pavese & Mike McCormick
Pavese-McCormick Agency, Inc.
mikem@pavesemccormick.com
______________________________
3 DWI suppression affirmed where reasons for ordering sobriety test not "reasonable suspicion." State v. Lord Appellate Division, A-3228-05T2, October 5, 2006, not approved for publication.
Law Division order granting the defendant’s motion to suppress evidence of the results of his sobriety tests affirmed; the police officer observed the defendant’s car cross both the shoulder and center lines, and he then activated his video recorder and followed the defendant’s car for about two and a half minutes; the officer testified that, during that time, the defendant came to a full stop several times, properly used his signals when executing turns, did not speed, and properly stopped his car when the officer signaled; there was no question that the initial motor vehicle violation allowed the officer to stop the defendant; however, the Law Division properly concluded that the reasons that the officer gave for ordering sobriety tests did not give rise to a “reasonable suspicion” that the defendant had been driving while intoxicated; although the defendant had been observed violating the motor vehicle laws, his behavior did not demonstrate any further violation, and he did not exhibit any physical impairment. Source: Facts-on-Call Order No. 20296
4. Defendant can be guilty of .08 DWI even though Breath machine calibrated at .10 level. State v. Pearson Appellate Division, A-1344-05T2, September 22, 2006, not approved for publication.
Conviction following a trial de novo of driving while intoxicated affirmed; the defendant registered blood-alcohol-content levels of 0.08 and 0.09 on two Breathalyzer tests; the defendant asserted that the State had not established that the Breathalyzer was in proper working order because it was calibrated for accuracy at a 0.10 blood-alcohol-content level rather than a 0.08 level; the State Police protocols were not changed when N.J.S.A. 39:4-50 was amended to reduce the blood-alcohol-content level needed to establish a per se violation from 0.10 to 0.08, and the protocols require periodic testing with a simulator solution to establish accuracy at the 0.10 level; there was no merit to the defendant’s argument in light of the well-established principle that a Breathalyzer that is tested pursuant to the protocols and satisfies them is in proper working order and thus satisfies the State’s burden of proving that the results from the Breathalyzer, if correctly operated by a qualified operator, are reliable. Source: Facts-on-Call Order No. 20227
_____________________________
Our law blog- http://njlaws1.blogspot.com/
Thank you for reading our newsletter! God Bless America USA #1
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KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com
Admitted to practice law in New Jersey, New York, Pennsylvania, US Supreme Court and Federal District Court
Wednesday, April 25, 2007
ABA ELDER LAW COMMITTEE Newsletter April, 2007
ABA General Practice, Solo and Small Firm Division
Chairs - Kenneth Vercammen, Edison, NJ and Jay Foonberg, Beverly
Hills, CA
In this issue:
ABA Elder Law Committee meeting
Friday, May 11, 2007 12:10- 1pm
Washington Court Hotel, Chair's Suite
1. ESTATE RECOVERY IN MEDICAID
2. Yearly Insurance Review
3. Effective Business Succession Planning
_____________________________
ABA Elder Law Committee meeting
Friday, May 11, 2007 12:10- 1pm
Washington Court Hotel, Chair's Suite
Topic: Elder Law Practice- Changes in the law and ideas to Improve
Your Practice by Giving Clients What They Want and Need, plus
Marketing and Expanding an Elder Law Practice
American Bar Association General Practice Section, Elder Law
Committee
Chairs/ Speakers:
Jay Foonberg, Beverly Hills, CA
-Kenneth A. Vercammen, Esq. , Edison, NJ Chair- Elder Law
Committee
If you are attending, email Kenneth Vercammen, Esq. at
Kenv@njlaws.com
Elder Law may be the biggest practice area of your career. 50,000
baby boomers/ day turning 60 and soon to be on Medicaid and
needing your help.
Topics:
New Medicaid Law 2006- Protect yourself from inaccurate advice and
malpractice
Getting referrals from other professionals
The aftermath of the Terry Schiavo case.
Email newsletters
How to get more referrals and repeat business
How to manage telephone conversations with your clients
Marketing with written fee agreements
-Networking the Internet without backlash
-Ethics and marketing without violating the Rules of Professional
Conduct
[Contact Kenneth Vercammen, Esq. for program information
732-572-0500]
1. ESTATE RECOVERY IN MEDICAID
By: Thomas. D. Begley, Jr., Esquire
A state is entitled to recover for Medicaid payments correctly paid on
behalf of the individual by use or real or personal property liens and
recovery from decedents’ estates. 42 U.S.C. § 1396p(b)(1)(B); HCFA
Transmittal 63; N.J.S.A. 30:4D-7.2 et seq.; N.J.A.C. 10:49-1 et seq.
The state is required to seek reimbursement from an individual’s
estate for the cost of nursing facility services. 42 U.S.C. §
1396p(b)(1)(B). However, no recovery may be made until after the
death of the recipient’s surviving spouse, and only when there are no
surviving children who are under age 21 or blind or permanently
disabled.
A. Definition of Estate. New Jersey seeks recovery from estates of
deceased individuals. While federal law only requires that states
recover from the probate estate of the deceased Medicaid recipient,
New Jersey has elected to expand the definition of an estate as
follows:
“Estate includes all real and personal property and other assets
included in the recipient’s estate as defined at N.J.S. 3B:1-1, as well
as any other real or personal property and other assets in which the
recipient 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 recipient through joint tenancy, tenancy in common,
survivorship, life estate, living trust or other arrangement.”
B. Age 55. With respect to an institutional level of care, estate
recovery applies to all Medicaid payments made or services received
after an individual is 55 years of age or older. N.J.A.C. 10:49-14.1(c).
Under federal and state law, in the case of a recipient who became
deceased on or after April 1, 1995 for whom a Medicaid payment was
made on or after October 1, 1993, a lien may be filed against, and
recovery sought, from the estate of a deceased recipient for
assistance correctly paid or to be paid on his behalf for all services
received when he was 55 years of age or older. 42 U.S.C. § 1396p(b);
N.J.A.C. 10:49-14.1(c).
C. De minimus Amounts. Under N.J.A.C. 30:4D-7.2a, recovery
cannot be made against the estate of a deceased recipient if the
amount sought is less than $500 or the gross estate of the deceased
recipient is less than $3,000.
D. Surviving Spouse or Child under 21 or Blind or Disabled. No
recovery shall be made 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, except for assistance incorrectly or illegally paid or for third
party liability recovery. These exceptions to estate recovery are also
incorporated in N.J.A.C. 10:49-14.1(a).
E. PAAD. No estate recovery shall be made under the
Pharmaceutical Assistance to the Aged and Disabled program
(PAAD), unless the assistance was incorrectly or illegally paid.
F. Life Estates/Trusts.
• Life Estate. Life estates that expire upon the Medicaid beneficiary’s
death are exempt from estate recovery. N.J.A.C. 10:49-14.1(n)(1).
• Inter Vivos Trust. An inter vivos trust established by a third party for
the benefit of a deceased Medicaid recipient is not subject to estate
recovery provided that the Medicaid recipient could not compel
distributions from the trust and the trust contains no assets in which
the Medicaid beneficiary held any interest within either five (5) years
prior to applying for Medicaid benefits or five (5) years prior to the
Medicaid recipient’s death. N.J.A.C. 10:49-14.1(n)(2).
• Testamentary Trust. Testamentary trusts are exempt from estate
recovery provided that the Medicaid recipient could not compel
distribution and the trust contains no assets in which the Medicaid
recipient held an interest within either five (5) years prior to applying for
Medicaid benefits or five (5) years prior to the recipient’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 recipient. Any assets of the community spouse
other than those that formed part of the CSRA allowance are
considered assets of the Medicaid recipient if acquired from the
Medicaid recipient with five (5) years prior to the date of application for
the Medicaid benefits or five (5) years prior to the date of the death of
the Medicaid beneficiary. It is believed that the reference to assets
acquired from the Medicaid recipient means assets acquired from the
Medicaid recipient’s spouse.
G. Tracing. N.J.A.C. 10:49-14.1(l) makes clear that estate recovery
may be sought from trusts and annuities, even if established by a third
party. This applies to living trusts and testamentary trusts if the assets
in the trust belonged to the Medicaid beneficiary as of five years prior
to the beneficiary’s death. N.J.A.C. 10:49-14.1(n). This provision may
be invalid since it appears to be more restrictive than either the federal
or state statute, which limits recovery to “living trusts.” However, in
DeMartino v. Division of Medical Assistance and Health Services, 373
N.J. Super. 210 (App. Div. 2004), the court held that such a trust was
subject to Medicaid estate recovery.
H. Spouse. New Jersey’s current regulations exempt the estate of
the spouse from recovery. N.J.A.C. 10:49-14.1(n).
An issue arises as to whether a state may recover from the estate of a
spouse of a deceased Medicaid recipient. In the case of Wisconsin v.
Estate of Budney, 197 NW 2d 245 (Wis. Ct. App. 1995), the court held
that the Wisconsin statute authorizing recovery from the spouse of a
deceased Medicaid recipient is invalid. In a California case, Demille v.
Bleshe, 1995 WL 23636 (N.D. Cal. 1995), the court held that the state
was free to impose liens on property of the deceased Medicaid
recipient, after the recipient is dead, and that those liens become
payable upon the death of the surviving spouse or upon sale of the
property.
New Jersey has a policy of not forcing a sale while any family
member is still living in the house. This is documented in N.J.A.C.
10:49-14.1(j). Recoveries will not be pursued against property held by
bona fide purchasers. N.J.A.C. 10:49-14.1(k).
There may be an issue as to whether Medicaid can recover for
payments made on behalf of the deceased Medicaid recipient prior to
December 23, 1995, which is the effective date of the New Jersey
statute.
New Jersey will exempt assets from estate recovery on a hardship
basis only if the asset is the sole income-producing asset of the
survivor, and recovery by the state would result in the survivor
becoming a beneficiary of public benefits himself or herself. Thus,
New Jersey’s tentative definition of “hardship” is very rigid. There is
also a rebuttable presumption in New Jersey that there is no hardship
if Medicaid planning was effected. N.J.A.C. 10:49-14.1(h). The
representative of the estate of the Medicaid recipient has 20 days from
the date of receipt of the notice of the State’s lien to file a request for a
waiver or compromise of the claim.
Begley & Bookbinder, P.C. is an Elder & Disability Law Firm with
offices in Moorestown, Stone Harbor and Lawrenceville, New Jersey
and can be contacted at 800-533-7227. The firm services southern
and central New Jersey and eastern Pennsylvania.
______________________
2. Yearly Insurance Review
By Ray Pavese & Mike McCormick
Every year you should review your insurance policies to make sure
you still have a policy that
meets your needs, as well as the needs of your family members and
loved ones.
One of the policies that most often gets overlooked is the life
insurance policy. Since this is often a long-term policy, most
insured individuals assume they are stuck with the same policy,
no matter what. Usually this is not the case, although it will
depend on your policy and company as to whether you receive
penalties when changing your insurance.
Even if penalties occur, changing your life insurance policy may
be essential to keeping up with your family's financial needs for
the future.
If you don't review your life insurance policy every year, you
should at least review your policy under these circumstances:
* Marriage/Divorce - Needs change depending on your marital
status. Keep this in mind as things change in your life. Even if
you don't want to change the value of your policy, you probably
want to change the beneficiary.
* Children - If you ask the majority of life insurance agents,
the major reason for changing a life insurance policy is because
of children. This is because many adults never believe they will
need extra money after death until they realize that they will
have someone preceding them in death. Children will need money
for basic food and shelter until they are 18 and possibly for a
future college fund as well. Keep that in mind, and tell others
you know that may be affected.
* An Illness - Although waiting to change your insurance policy
until you have a long-term illness will mean paying higher
premiums, it is best to at least review your policy limitations
and make necessary changes if you find out you have a potentially
life threatening illness.
If you have questions regarding a change you would like to make
on your life insurance policy, feel free to contact me anytime.
Sincerely,
Ray Pavese & Mike McCormick
Pavese-McCormick Agency, Inc.
mikem@pavesemccormick.com
______________________________
3. Effective Business Succession Planning
By Saul Simon
Business owners invest significant amounts of time and financial
resources to make their enterprises successful. Quite often, due to
the quick pace of day-to-day operations, planning for succession of
ownership is relegated to a low-priority task. But there comes a point
in the life cycle of any business when the owner is no longer able to
manage the firm that he or she founded.
Because the timing of death or disability is difficult to predict, it’s
prudent to have a succession plan in place now to safeguard your
family’s financial well being, and to provide your business with
leadership during a transition period.
A Family Affair?
One logical solution—and one that most entrepreneurs may want to
choose—is to turn the reins over to their children. However, despite its
emotional and intuitive appeal, the odds are stacked squarely against
a business surviving a transfer down the bloodline.
According to the U.S. Small Business Administration, two-thirds of
family-run enterprises fail to make the successful transition to a
second generation of ownership, and less than 15% survive into the
third generation. Making a successful transition even trickier are
issues brought on by divorce, blended families, or rivalries among
children.
The best course of action may be either to identify strong candidates
within your company who can continue to run the business and
provide a source of financial security for your family, or to look at the
potential for selling the business to an outside party.
“You have to be realistic,” says Jack Kaewpalug, Certified Financial
PlannerTM Practitioner with Lincoln Financial Advisors Corp. in Irvine,
Calif. “If you’re the person who is responsible for 80% of the firm’s
sales, you’ll need to identify somebody who can assume that role if
you want to keep the operation going.”
Transitional Steps
Whichever course you eventually decide is right for your business,
there are steps you can take now that will ease the transition.
* Groom new management. Who is best able to run the business in
your absence? Perhaps your children have spent years growing up in
the business and have become capable managers in their own right.
If not, look to your existing management team, and make your
intentions known. Be sure that candidates are capable and interested
in taking over.
* Determine a value. Work with a valuation specialist to get a fair
assessment of what your business might be worth. While valuation
analysis may be an art as much as it is a science, you should place a
value on your business in the event you decide to sell. There are
several valuation methods, including book value, discounted cash
flow, or you could hire a professional appraiser. If you decide to
transfer the business to your children, a professional appraisal is
generally required to withstand IRS scrutiny.
* Draft a buy-sell agreement. Depending on the structure of
ownership, this document will be a binding agreement detailing the
terms of ownership transfer between you and your offspring, you and a
non-family successor, or you and your partners. Be sure to specify
how the agreement will be funded. “Proceeds from a life insurance
policy are frequently used as a way to fund a buy-sell arrangement,”
says Kaewpalug, “Other options include loans from a bank or
company earnings that are paid back through an ‘earn-out’
arrangement with your successor, whereby the loan is paid back in
regular installments.
* ESOPs. If you have a large number of employees, another option is
an Employee Stock Ownership Plan (ESOP), whereby a bank lends
money to the ESOP to purchase your interest in the business, and the
employees then buy the shares through regular payroll deductions.
Planning for succession can be an unpleasant task, although the
outcome can be even more unpleasant if you fail to plan. “You’ll have a
lot more options if you start to plan when things are going great,” says
Kaewpalug. “What you don’t want is a situation where your family is
scrambling to salvage some value from the business after you’re
gone.”
Simon Financial Group
399 Thornall Street, 12th Floor
Edison, NJ 08837
Phone: (732)623.2078
Fax: (732)623.2088
www.saulsimon.com
Your Editor Kenneth Vercammen, Edison Attorney was selected a
2007 NJ Super Lawyer in the Criminal Law- DWI section for the
second year in a row. Of over 79,00 attorneys in New Jersey, only three
were selected as Super Lawyers in the Criminal Law- DWI category.
HOW SUPER LAWYERS ARE SELECTED
Law & Politics performs the polling, research and selection of
Super Lawyers in a process designed to identify lawyers who have
attained a high degree of peer recognition and professional
achievement. Super Lawyers is a comprehensive and diverse listing
of outstanding attorneys, representing a wide range of practice areas,
firm sizes and geographic locations. Only 5 percent of the lawyers in
each state or region are named Super Lawyers
http://www.njlaws.com/superlawyer.htm
_____________________________
Send us your articles & ideas
To help your practice, we feature in this newsletter edition a few
articles and tips on marketing and improving service to clients. But
your Editor and chairs can't do it all. Please send articles, suggestions
or ideas you wish to share with others.
General Practice, Solo and Small Firm Division:
Elder Law Committee and the ESTATE PLANNING, PROBATE &
TRUST COMMITTEE
Who We Are
This committee focuses on improving estate planning skills,
substantive law knowledge and office procedures for the attorney who
practices estate planning, probate and trust law. This committee also
serves as a network resource in educating attorneys regarding Elder
Law situations.
To help your practice, we feature in this newsletter edition a few
articles and tips on marketing and improving service to clients. But
your Editor and chairs can't do it all. Please send articles, suggestions
or ideas you wish to share with others.
Let us know if you are finding any useful information or anything
you can share with the other members. You will receive written credit
as the source and thus you can advise your clients and friends you
were published in an ABA publication. We will try to meet you needs.
We also seek articles on Elder Law, Probate, Wills, Medicaid and
Marketing. Please send your marketing ideas and articles to us. You
can become a published ABA author.
________________________________________
The Elder Law Committee of the ABA General Practice Division is
directed towards general practitioners and more experienced elder
law attorneys. The committee consistently sponsors programs at the
Annual Meeting, the focus of which is shifting to advanced topics for
the more experienced elder lawyer.
This committee also focuses on improving estate planning skills,
substantive law knowledge and office procedures for the attorney who
practices estate planning, probate and trust law. This committee also
serves as a network resource in educating attorneys regarding Elder
Law situations.
Kenneth Vercammen, Esq. co-Chair
Jay Foonberg, Beverly Hills Co-chair, Author of Best Sellers "How to
Start and Build a Law Practice" and "How to get and keep good
clients', Beverly Hills, CA jayfoonberg@aol.com>
Jay Foonberg
Please Note New Mailing Address:
9461 Charleville Blvd., #416
Beverly Hills, CA. 90212-3017
Same Tel: 310-652-5010
Same Fax: 310-652-5019
We will also provide tips on how to promote your law office, your
practice and Personal Marketing Skills in general. It does not deal with
government funded "legal services" for indigent, welfare cases.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
Kenv@njlaws.com
ABA General Practice, Solo and Small Firm Division
Chairs - Kenneth Vercammen, Edison, NJ and Jay Foonberg, Beverly
Hills, CA
In this issue:
ABA Elder Law Committee meeting
Friday, May 11, 2007 12:10- 1pm
Washington Court Hotel, Chair's Suite
1. ESTATE RECOVERY IN MEDICAID
2. Yearly Insurance Review
3. Effective Business Succession Planning
_____________________________
ABA Elder Law Committee meeting
Friday, May 11, 2007 12:10- 1pm
Washington Court Hotel, Chair's Suite
Topic: Elder Law Practice- Changes in the law and ideas to Improve
Your Practice by Giving Clients What They Want and Need, plus
Marketing and Expanding an Elder Law Practice
American Bar Association General Practice Section, Elder Law
Committee
Chairs/ Speakers:
Jay Foonberg, Beverly Hills, CA
-Kenneth A. Vercammen, Esq. , Edison, NJ Chair- Elder Law
Committee
If you are attending, email Kenneth Vercammen, Esq. at
Kenv@njlaws.com
Elder Law may be the biggest practice area of your career. 50,000
baby boomers/ day turning 60 and soon to be on Medicaid and
needing your help.
Topics:
New Medicaid Law 2006- Protect yourself from inaccurate advice and
malpractice
Getting referrals from other professionals
The aftermath of the Terry Schiavo case.
Email newsletters
How to get more referrals and repeat business
How to manage telephone conversations with your clients
Marketing with written fee agreements
-Networking the Internet without backlash
-Ethics and marketing without violating the Rules of Professional
Conduct
[Contact Kenneth Vercammen, Esq. for program information
732-572-0500]
1. ESTATE RECOVERY IN MEDICAID
By: Thomas. D. Begley, Jr., Esquire
A state is entitled to recover for Medicaid payments correctly paid on
behalf of the individual by use or real or personal property liens and
recovery from decedents’ estates. 42 U.S.C. § 1396p(b)(1)(B); HCFA
Transmittal 63; N.J.S.A. 30:4D-7.2 et seq.; N.J.A.C. 10:49-1 et seq.
The state is required to seek reimbursement from an individual’s
estate for the cost of nursing facility services. 42 U.S.C. §
1396p(b)(1)(B). However, no recovery may be made until after the
death of the recipient’s surviving spouse, and only when there are no
surviving children who are under age 21 or blind or permanently
disabled.
A. Definition of Estate. New Jersey seeks recovery from estates of
deceased individuals. While federal law only requires that states
recover from the probate estate of the deceased Medicaid recipient,
New Jersey has elected to expand the definition of an estate as
follows:
“Estate includes all real and personal property and other assets
included in the recipient’s estate as defined at N.J.S. 3B:1-1, as well
as any other real or personal property and other assets in which the
recipient 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 recipient through joint tenancy, tenancy in common,
survivorship, life estate, living trust or other arrangement.”
B. Age 55. With respect to an institutional level of care, estate
recovery applies to all Medicaid payments made or services received
after an individual is 55 years of age or older. N.J.A.C. 10:49-14.1(c).
Under federal and state law, in the case of a recipient who became
deceased on or after April 1, 1995 for whom a Medicaid payment was
made on or after October 1, 1993, a lien may be filed against, and
recovery sought, from the estate of a deceased recipient for
assistance correctly paid or to be paid on his behalf for all services
received when he was 55 years of age or older. 42 U.S.C. § 1396p(b);
N.J.A.C. 10:49-14.1(c).
C. De minimus Amounts. Under N.J.A.C. 30:4D-7.2a, recovery
cannot be made against the estate of a deceased recipient if the
amount sought is less than $500 or the gross estate of the deceased
recipient is less than $3,000.
D. Surviving Spouse or Child under 21 or Blind or Disabled. No
recovery shall be made 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, except for assistance incorrectly or illegally paid or for third
party liability recovery. These exceptions to estate recovery are also
incorporated in N.J.A.C. 10:49-14.1(a).
E. PAAD. No estate recovery shall be made under the
Pharmaceutical Assistance to the Aged and Disabled program
(PAAD), unless the assistance was incorrectly or illegally paid.
F. Life Estates/Trusts.
• Life Estate. Life estates that expire upon the Medicaid beneficiary’s
death are exempt from estate recovery. N.J.A.C. 10:49-14.1(n)(1).
• Inter Vivos Trust. An inter vivos trust established by a third party for
the benefit of a deceased Medicaid recipient is not subject to estate
recovery provided that the Medicaid recipient could not compel
distributions from the trust and the trust contains no assets in which
the Medicaid beneficiary held any interest within either five (5) years
prior to applying for Medicaid benefits or five (5) years prior to the
Medicaid recipient’s death. N.J.A.C. 10:49-14.1(n)(2).
• Testamentary Trust. Testamentary trusts are exempt from estate
recovery provided that the Medicaid recipient could not compel
distribution and the trust contains no assets in which the Medicaid
recipient held an interest within either five (5) years prior to applying for
Medicaid benefits or five (5) years prior to the recipient’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 recipient. Any assets of the community spouse
other than those that formed part of the CSRA allowance are
considered assets of the Medicaid recipient if acquired from the
Medicaid recipient with five (5) years prior to the date of application for
the Medicaid benefits or five (5) years prior to the date of the death of
the Medicaid beneficiary. It is believed that the reference to assets
acquired from the Medicaid recipient means assets acquired from the
Medicaid recipient’s spouse.
G. Tracing. N.J.A.C. 10:49-14.1(l) makes clear that estate recovery
may be sought from trusts and annuities, even if established by a third
party. This applies to living trusts and testamentary trusts if the assets
in the trust belonged to the Medicaid beneficiary as of five years prior
to the beneficiary’s death. N.J.A.C. 10:49-14.1(n). This provision may
be invalid since it appears to be more restrictive than either the federal
or state statute, which limits recovery to “living trusts.” However, in
DeMartino v. Division of Medical Assistance and Health Services, 373
N.J. Super. 210 (App. Div. 2004), the court held that such a trust was
subject to Medicaid estate recovery.
H. Spouse. New Jersey’s current regulations exempt the estate of
the spouse from recovery. N.J.A.C. 10:49-14.1(n).
An issue arises as to whether a state may recover from the estate of a
spouse of a deceased Medicaid recipient. In the case of Wisconsin v.
Estate of Budney, 197 NW 2d 245 (Wis. Ct. App. 1995), the court held
that the Wisconsin statute authorizing recovery from the spouse of a
deceased Medicaid recipient is invalid. In a California case, Demille v.
Bleshe, 1995 WL 23636 (N.D. Cal. 1995), the court held that the state
was free to impose liens on property of the deceased Medicaid
recipient, after the recipient is dead, and that those liens become
payable upon the death of the surviving spouse or upon sale of the
property.
New Jersey has a policy of not forcing a sale while any family
member is still living in the house. This is documented in N.J.A.C.
10:49-14.1(j). Recoveries will not be pursued against property held by
bona fide purchasers. N.J.A.C. 10:49-14.1(k).
There may be an issue as to whether Medicaid can recover for
payments made on behalf of the deceased Medicaid recipient prior to
December 23, 1995, which is the effective date of the New Jersey
statute.
New Jersey will exempt assets from estate recovery on a hardship
basis only if the asset is the sole income-producing asset of the
survivor, and recovery by the state would result in the survivor
becoming a beneficiary of public benefits himself or herself. Thus,
New Jersey’s tentative definition of “hardship” is very rigid. There is
also a rebuttable presumption in New Jersey that there is no hardship
if Medicaid planning was effected. N.J.A.C. 10:49-14.1(h). The
representative of the estate of the Medicaid recipient has 20 days from
the date of receipt of the notice of the State’s lien to file a request for a
waiver or compromise of the claim.
Begley & Bookbinder, P.C. is an Elder & Disability Law Firm with
offices in Moorestown, Stone Harbor and Lawrenceville, New Jersey
and can be contacted at 800-533-7227. The firm services southern
and central New Jersey and eastern Pennsylvania.
______________________
2. Yearly Insurance Review
By Ray Pavese & Mike McCormick
Every year you should review your insurance policies to make sure
you still have a policy that
meets your needs, as well as the needs of your family members and
loved ones.
One of the policies that most often gets overlooked is the life
insurance policy. Since this is often a long-term policy, most
insured individuals assume they are stuck with the same policy,
no matter what. Usually this is not the case, although it will
depend on your policy and company as to whether you receive
penalties when changing your insurance.
Even if penalties occur, changing your life insurance policy may
be essential to keeping up with your family's financial needs for
the future.
If you don't review your life insurance policy every year, you
should at least review your policy under these circumstances:
* Marriage/Divorce - Needs change depending on your marital
status. Keep this in mind as things change in your life. Even if
you don't want to change the value of your policy, you probably
want to change the beneficiary.
* Children - If you ask the majority of life insurance agents,
the major reason for changing a life insurance policy is because
of children. This is because many adults never believe they will
need extra money after death until they realize that they will
have someone preceding them in death. Children will need money
for basic food and shelter until they are 18 and possibly for a
future college fund as well. Keep that in mind, and tell others
you know that may be affected.
* An Illness - Although waiting to change your insurance policy
until you have a long-term illness will mean paying higher
premiums, it is best to at least review your policy limitations
and make necessary changes if you find out you have a potentially
life threatening illness.
If you have questions regarding a change you would like to make
on your life insurance policy, feel free to contact me anytime.
Sincerely,
Ray Pavese & Mike McCormick
Pavese-McCormick Agency, Inc.
mikem@pavesemccormick.com
______________________________
3. Effective Business Succession Planning
By Saul Simon
Business owners invest significant amounts of time and financial
resources to make their enterprises successful. Quite often, due to
the quick pace of day-to-day operations, planning for succession of
ownership is relegated to a low-priority task. But there comes a point
in the life cycle of any business when the owner is no longer able to
manage the firm that he or she founded.
Because the timing of death or disability is difficult to predict, it’s
prudent to have a succession plan in place now to safeguard your
family’s financial well being, and to provide your business with
leadership during a transition period.
A Family Affair?
One logical solution—and one that most entrepreneurs may want to
choose—is to turn the reins over to their children. However, despite its
emotional and intuitive appeal, the odds are stacked squarely against
a business surviving a transfer down the bloodline.
According to the U.S. Small Business Administration, two-thirds of
family-run enterprises fail to make the successful transition to a
second generation of ownership, and less than 15% survive into the
third generation. Making a successful transition even trickier are
issues brought on by divorce, blended families, or rivalries among
children.
The best course of action may be either to identify strong candidates
within your company who can continue to run the business and
provide a source of financial security for your family, or to look at the
potential for selling the business to an outside party.
“You have to be realistic,” says Jack Kaewpalug, Certified Financial
PlannerTM Practitioner with Lincoln Financial Advisors Corp. in Irvine,
Calif. “If you’re the person who is responsible for 80% of the firm’s
sales, you’ll need to identify somebody who can assume that role if
you want to keep the operation going.”
Transitional Steps
Whichever course you eventually decide is right for your business,
there are steps you can take now that will ease the transition.
* Groom new management. Who is best able to run the business in
your absence? Perhaps your children have spent years growing up in
the business and have become capable managers in their own right.
If not, look to your existing management team, and make your
intentions known. Be sure that candidates are capable and interested
in taking over.
* Determine a value. Work with a valuation specialist to get a fair
assessment of what your business might be worth. While valuation
analysis may be an art as much as it is a science, you should place a
value on your business in the event you decide to sell. There are
several valuation methods, including book value, discounted cash
flow, or you could hire a professional appraiser. If you decide to
transfer the business to your children, a professional appraisal is
generally required to withstand IRS scrutiny.
* Draft a buy-sell agreement. Depending on the structure of
ownership, this document will be a binding agreement detailing the
terms of ownership transfer between you and your offspring, you and a
non-family successor, or you and your partners. Be sure to specify
how the agreement will be funded. “Proceeds from a life insurance
policy are frequently used as a way to fund a buy-sell arrangement,”
says Kaewpalug, “Other options include loans from a bank or
company earnings that are paid back through an ‘earn-out’
arrangement with your successor, whereby the loan is paid back in
regular installments.
* ESOPs. If you have a large number of employees, another option is
an Employee Stock Ownership Plan (ESOP), whereby a bank lends
money to the ESOP to purchase your interest in the business, and the
employees then buy the shares through regular payroll deductions.
Planning for succession can be an unpleasant task, although the
outcome can be even more unpleasant if you fail to plan. “You’ll have a
lot more options if you start to plan when things are going great,” says
Kaewpalug. “What you don’t want is a situation where your family is
scrambling to salvage some value from the business after you’re
gone.”
Simon Financial Group
399 Thornall Street, 12th Floor
Edison, NJ 08837
Phone: (732)623.2078
Fax: (732)623.2088
www.saulsimon.com
Your Editor Kenneth Vercammen, Edison Attorney was selected a
2007 NJ Super Lawyer in the Criminal Law- DWI section for the
second year in a row. Of over 79,00 attorneys in New Jersey, only three
were selected as Super Lawyers in the Criminal Law- DWI category.
HOW SUPER LAWYERS ARE SELECTED
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firm sizes and geographic locations. Only 5 percent of the lawyers in
each state or region are named Super Lawyers
http://www.njlaws.com/superlawyer.htm
_____________________________
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General Practice, Solo and Small Firm Division:
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Who We Are
This committee focuses on improving estate planning skills,
substantive law knowledge and office procedures for the attorney who
practices estate planning, probate and trust law. This committee also
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Law situations.
To help your practice, we feature in this newsletter edition a few
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your Editor and chairs can't do it all. Please send articles, suggestions
or ideas you wish to share with others.
Let us know if you are finding any useful information or anything
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The Elder Law Committee of the ABA General Practice Division is
directed towards general practitioners and more experienced elder
law attorneys. The committee consistently sponsors programs at the
Annual Meeting, the focus of which is shifting to advanced topics for
the more experienced elder lawyer.
This committee also focuses on improving estate planning skills,
substantive law knowledge and office procedures for the attorney who
practices estate planning, probate and trust law. This committee also
serves as a network resource in educating attorneys regarding Elder
Law situations.
Kenneth Vercammen, Esq. co-Chair
Jay Foonberg, Beverly Hills Co-chair, Author of Best Sellers "How to
Start and Build a Law Practice" and "How to get and keep good
clients', Beverly Hills, CA jayfoonberg@aol.com>
Jay Foonberg
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KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
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Kenv@njlaws.com
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