In this issue:
1. Schiavo case spurs push for Living Wills
2. The New Probate Statute revising various sections of the New Jersey law on wills and estates starting March, 2005
3 Events: Saturday, April 2, 2004 Edison Elks Officers Installation dinner
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1. Schiavo case spurs push for Living Wills
Terri Schiavo didn't have a Living Will. But because of her, thousands of other Americans won't make that same mistake.
Attorneys and organizations that promote the importance of Living Wills and advance directives say the bitter legal battle over the severely brain-damaged woman has led many people to put their end-of-life wishes in writing.
Recently, in Ken Vercammen's office and other law offices, clients invariably bring up Terri Schiavo as they put their affairs in order. "Almost universally, it's "That poor girl. I don't ever want that to happen to me,' " "People are much more informed about the issue."
Most American adults — estimates are as high as 75 percent — do not have written directives for their families to follow. Schiavo did not, and her fate has been debated in court for years. "I think everyone can agree this is not the way the decision should be made," said Paul Malley, president of Aging with Dignity. Aging with Dignity estimates requests for its advanced directives are up tenfold because of the Schiavo case. "We get requests saying, "We have seen what happened in the Schiavo case, and above all, we don't want to see that same tragedy repeat itself in our family,' "
Living Wills are documents that communicate patients' wishes on medical treatments should they become terminally ill or incapacitated. An advance directive is a Living Will that includes the designation of a medical surrogate to carry out the expressed wishes. Published in the Home News Tribune 03/21/05
In the absence of a Living Will or other legal arrangement if you become disabled, your family or partner often has no say regarding medical care or life support. Your family or partner cannot always receive information on your medical status or medical care.
New Jersey has declared that competent adults have the fundamental right in collaboration with their health care providers, to control decisions about their own health care. States recognize in their law and public policy, the personal right of the individual patient to make voluntary, informed choices to accept, to reject or to choose among alternative courses of medical and surgical treatment. If you have a Living Will, you can designate your partner as a decision maker.
WHY LIVING WILLS
Modern advances in science and medicine have made possible the prolongation of the lives of many seriously ill individuals, without always offering realistic prospects for improvement or cure. For some individuals the possibility of extended life is experienced as meaningful and of benefit. For others, artificial prolongation of life may seem to provide nothing medically necessary or beneficial, serving only to extend suffering and prolong the dying process. States recognize the inherent dignity and value of human life and within this context recognize the fundamental right of individuals to make health care decisions to have life-prolonging medical or surgical means or procedures provided, withheld, or withdrawn.
New Jersey recognizes the right of competent adults to plan ahead for health care decisions through the execution of advance directives, such as Living Wills and durable powers of attorney, and to have their wishes respected, subject to certain limitations.
PURPOSE OF LIVING WILLS
In order to assure respect for patients' previously expressed wishes when the capacity to participate actively in decision making has been lost or impaired; to facilitate and encourage a sound decision making process in which patients, health care representatives, families, physicians, and other health care professionals are active participants; to properly consider patients' interests both in self-determination and in well-being; and to provide necessary and appropriate safeguards concerning the termination of life-sustaining treatment for incompetent patients as the law and public policy of this State, the Legislature has enacted Living Will/ Advance Directives for Health Care Act.
REQUIREMENTS OF STATUTE
The advance directive for health care (Living Will) requires a writing executed in accordance with the requirements of the state law. It must be either signed and dated in front of an attorney at law or other person authorized to administer oaths, or in the presence of two subscribing adult witnesses. A designated health care representative shall not act as a witness to the execution of the advance directive. Since this is a legal document, it must be executed properly to be valid under the statute.
Typical attorney fee for Living Will preparation $75
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2. The New Probate Statute revising various sections of the New Jersey law on wills and estates starting March, 2005
Compiled by Kenneth Vercammen
1. A Testator now means both male and female individuals, removing the term “Testatrix”. Will forms used by attorneys will need to be revised.
2. No Will?
Under 2004 law, when a decedent leaves only a spouse and children by that spouse, the spouse gets $50,000, then the children and spouse split the rest 50-50.
The 2005 law makes substantial revisions to the laws governing intestate succession. For example, the new law 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. Currently, such a surviving spouse receives the first $50,000, plus 50% of the intestate estate. Furthermore, 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.
Under the new Code, the spouse receives everything. (And if the spouse is an Administrator, no bond is required.)
3. Effect of divorce
The new statute will expand the present law that a divorce nullifies Will provisions to the ex-spouse. Now, it will cover other governing instruments (trusts, POD bank accounts, insurance policies, beneficiary designations, etc.), and it will apply to relatives of the ex-spouse. So if a client’s Will appoints his wife’s cousin, the CPA, as Executor, the divorce will revoke that designation.
Divorce agreements will need to specify exactly what is and is not intended to survive the breakup.
4. The formally executed Will standard is set farther, N.J.S.A. 3B:3-1 and -2, with: "The Will may be signed by another person on the testator’s behalf, if it is done in the testator’s “conscious” presence and at the testator’s direction. For example, a stroke victim who is competent ."
This would seem to assist a would-be testator who is competent and able to communicate, but not physically capable of writing at the time. The other modification requires the two witnesses to sign “within a reasonable time” after witnessing either the signing of the Will by the testator or the testator’s acknowledgment of his signature on the Will.
5. A hand-written [holographic] Will cannot be admitted to probate. An expensive Complaint and Order to Show Cause must be filed in the Superior Court.
6. 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.
7. The new law expands the statute with respect to disinheritance of a person, who criminally and intentionally kills the decedent to include, revocation of non-testamentary dispositions.
8. Small estates.
This law also makes changes with regard to small estates. Under 2,000 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. The new 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. No bond is required.
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. This new law, does vary from the 1990 version of the Uniform Probate Code due to the elective share law that continues to exist in New Jersey.
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".
"Per capita", if a governing instrument requires property to be distributed "per capita", the property is divided to provide equal shares for each of the takers, without regard to their shares or the right of 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 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, nine months from the date of the [order] decedent's death. If a claim is not so presented to the personal representative within nine months from the date of the decedent's death, the personal representative shall not be liable to the creditor with respect to any assets which the personal representative may have delivered or paid in satisfaction of any lawful claims, devises or distributive shares, before the presentation of the claim.
The elective share provisions of the present Code are not being changed yet. Currently, a spouse who is not given money in a Will can challenge the terms of the Will. This is called "electing against the Will by a spouse". A spouse could receive up to 1/3 of the estate.
Contact a Probate Attorney for an in office consultation
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3 Events:
Saturday, April 2, 2004 Edison Elks Officers Installation dinner- , at Ladies at 6pm. and Elks at 7pm.
Cost is $20.00 for appetizers, buffet, dessert, and DJ entertainment Kenneth Vercammen will be installed as Presiding Justice. For tickets or information, call Ken V at 732-572-0500
Reasons to Become a Member of the Edison Elk or another Elk Club near your home
Elks are a nationwide fraternal organization of well over a million American citizens. We love our country and desire to preserve its cherished institutions, traditions and values. We respect our neighbors and constantly seek to promote their well being. We love and enjoy life and believe this enjoyment is increased by sharing it with family, friends and all with whom we come in contact.
BECAUSE We expend over two million dollars yearly to bring encouragement, cheer and comfort to hospitalized veterans throughout the United States in fulfillment of our solemn pledge: “So long as there are veterans in our hospitals, the Benevolent and Protective Order of Elks will never forget them.”
BECAUSE Through our local Lodge, district, state and national programs, we provide healthful activities, guidance and assistance to over eight million boys and girls every year. We fund scholarships, athletic teams, summer camps, scouting, and drug education programs, We encourage civic, environmental, and patriotic involvement through essay contests, seminars and distribution of materials; as well as family-oriented activities in our Lodges.
BECAUSE Elks operate numerous camps, hospitals, clinics, training centers and in-home services for the care and treatment of children and adults with physical disabilities including vision and speech problems, all across the county.
BECAUSE In our many benevolence Elks and Lodges throughout the United States spend over forty-five million dollars annually in our various works of community betterment and charitable programs. This does not take into consideration donated hours equivalent to over thirty-five million dollars.
BECAUSE In approximately 2,300 Elks Lodges throughout the United States, men prominent in public, business and professional life can be found. In these Lodges, located in the principal cities and towns throughout America, the hand-clasp of fraternity and a warm welcome as a visiting Brother await you.
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4. New website article: Possession of Cannabis and other drug charges
http://www.njlaws.com/defenses_to_possession_of_cannabis_and_other%20drug_charges.htm
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Thank you for reading our newsletter! God Bless America USA #1
Kenneth Vercammen, Esq.
2053 Woodbridge Ave.
Edison, NJ 08817
PHONE 732-572-0500 (Fax) 732-572-0030
website: www.njlaws.com
"Celebrating 20 years of providing excellent service to clients 1985-2005"
Free T- shirts and car coffee holders to all current and past clients. Please come into office.
Editor's Note and Disclaimer: All materials Copyright 2005. You may pass along the information on the NJ Laws Newsletter and website, provided the name and address of the Law Office is included.
Always schedule an office appointment with an experienced attorney when you have a legal matter. The Rules of Court limit an attorney's ability to discuss matters over the phone. If you have legal questions, you should schedule an in- office consultation.
