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Friday, July 20, 2007

NJ Laws Newsletter E165 October 7, 2004

In this issue:
1. New NJ Probate Law CHAPTER 132 of 2004 makes a number of substantial changes in Probate and the administration of estates and trusts
2 Major Municipal Court and Traffic Court Rule changes effective Sept 1, 2004
3. Law Division can find defendant guilty on observation DWI even if Municipal Court found guilty on breathalyzer only
4. Expungement permitted for possession with intent.
5. New articles this week on website: civil, Criminal, Elder, litigation articles added to website www.njlaws.com

1. New Law CHAPTER 132 of 2004 makes a number of substantial changes Probate and the administration of estates and trusts in the State of New Jersey.

The current statute, effective in New Jersey on May 1, 1982, was modeled upon the 1969 version of the Uniform Probate Code. This law 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 law 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, however, does vary from the 1990 version of the Uniform Probate Code due to the unique elective share law that continues to exist in the State of New Jersey, which has been left for separate consideration. The law clarifies the definitions of "descendant," "heirs," "incapacitated individual," "joint tenants with right of survivorship," "per capita distribution," "per stripes" distribution and distribution of estates "by representation."
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. For example, the law provides that the intestate share of a surviving spouse would be 100 percent 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. Currently, such a surviving spouse receives the first $50,000 plus 50 percent of the intestate estate. Further, 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.
Finally, the law expands the rules of construction formerly applicable only to wills to other donative transfers. The law provides a statute of limitations with respect to creditor claims against a decedent's estate.
This bill was signed into law on August 31. It will be effective on March 31, 2005.
2 Major Municipal Court and Traffic Court Rule changes effective Sept 1, 2004

Rule 7:2-1(d) - Authorizes municipal court judges to issue arrest warrants over the telephone upon the application of a law enforcement officer. The Rule sets forth the procedures to be used by both the judge and the police and requires the judge to make contemporaneous notes in certain instances.

7:2-2(a)(2) - Police can use a "fill in the blanks" criminal summons, similar to a traffic ticket. They do not have to bring the defendant back to the police station and type up the complaint. The police can fill out the complaint at the scene. A police officer may now personally serve a summons charging a disorderly or petty disorderly persons offense upon a defendant without effecting a custodial arrest.

7:6-2(d)(5) - Plea Agreements- The prosecutor needs to personally appear in the courtroom and place on the record the terms and factual basis that supports the charges in a plea agreement on the record. The only exception involves guilty pleas to the original offense, and plea bargains of traffic offenses that are contained on a violations schedule. (See revised Guideline 3 to plea bargaining procedures in Appendix 1)

7:8-5 - Dismissal of complaints - The amendment to the general dismissal Rule in Municipal Court now makes it clear that a dismissal under Rule 7:8-5 is final. A complaint that has been dismissed under this Rule may not be reopened except to correct a manifest injustice.

7:8-9(a)(2) - Bench warrants on parking tickets - This new Rule provides that a bench warrant based upon a failure to appear on a parking ticket may not issue unless the defendant has a least 2 or more open parking tickets within the municipal court's jurisdiction.

7:12-3 - Defense by certification and plea by certification- The change will make it easier for persons outside New Jersey to resolve their cases utilizing this Rule.

Appendix I to Rule VII - The Court has made two major changes to the Guidelines for controlling plea bargaining in Municipal Court. First, under the revised Guideline 3, a municipal prosecutor must appear in person in court to set forth every plea agreement except in those cases where the offense is listed on a violations schedule. In those cases, the prosecutor may use a form approved by the Administrative Director to communicate the plea agreement to the Court.

Drug Offenses - Guideline 4 now permits the judge to dismiss, as part of a plea agreement, drug offenses under Chapters 35 and 36 of Title 2C when a defendant has been charged with multiple drug offenses arising from the same incident. If the defendant pleads guilty to one offense, the plea agreement may allow that any remaining drug offenses arising from the same incident be dismissed. The same procedure may be used if the defendant seeks a conditional discharge on one of several drug offenses arising from the same incident.

Source: www.muni-mail.com.
3. Law Division can find defendant guilty on observation DWI even if Municipal Court found guilty on breathalyzer only. State v. Kashi 180 NJ 45 (2004).
The New Jersey Supreme Court affirmed substantially for the reasons expressed by the Appellate Division in its opinion reported at 360 N.J. Super. 538 (2003). Double jeopardy is not implicated in a case where the Law Division in a trial de novo convicts on the charge of driving while intoxicated based on the evidence of the police officer's observations even though the Municipal Court concluded that the evidence was insufficient. Source: New Jersey Lawyer June 7, 2004 p. 17

4. Expungement permitted for possession with intent. State v. P.L. 369 NJ Super. 24 (App. Div. 2004).
N.J.S.A. 2C:52-2c clearly and unambiguously allows the expungement of a conviction for possession of CDS with intent to distribute, as opposed to a conviction for an actual or intended sale of CDS, which is precluded by the statute. Source: New Jersey Lawyer May 24, 2004 p. 25

Pardon permits expungement. In Re Petition of L.B. For Expungement of Criminal Records 369 NJ Super. 354 (Law Div. 2004).
A pardon granted by the Governor permits expungement of a criminal record that would otherwise be barred by statute. Source: New Jersey Lawyer May 31, 2004 p. 18


5. New articles this week on website: civil, Criminal, Elder, litigation articles added to website www.njlaws.com

Summons in Civil Superior Court Litigation

Commercial Motor Vehicle DWI with CDL

Search and Seizure Law without a Search Warrant and Suppression Motions

5. Carnegie Center 5K for The Parkinson Alliance was held on October 2 Congratulations to the fine runners and volunteers that helped make this a successful event.
1st place team:
3. Michael Daigeaun North Brunswick, NJ 24 16:44
8. David Rosenblatt Robbinsville, NJ 37 17:52
15. Ken Vercammen South Brunswick, NJ 45 18:51
17. Dan Fabrizio Princeton, NJ 42 19:24
23. Robert Tona Monmouth Jct, NJ 45 19:57
61. Mitch Herman Milltown, NJ 49 22:30
89. Dana Gross Bedminster, NJ 38 23:18
90. Robert Mcgill South Plainfield, NJ 44 23:19
144. Mark Wadiak Kendall Park, NJ 48 25:27
201. Chris Knigge Princeton, NJ 45 27:22
Carnegie Center 5K for The Parkinson Alliance was held on October 2 The Race Director was Jerry Fennelly
Results at http://www.compuscore.com/cs2004/october/carnegi1.htm

Thank you for reading our newsletter! God Bless America USA #1
Kenneth Vercammen, Esq.
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