NJ Laws Email Newsletter E335
Kenneth Vercammen, Attorney at Law
May 12, 2010
=======================================================================
In This Issue:
Recent Cases
1. No Specific Words Required for Miranda Warnings.
2. OPRA Limits Copy Fees to Actual Costs.
3. Next Community Events
4. If You Are Hurt In an Accident, We Can Help.
Office Phone Number:
(732) 572-0500
Greetings,
RECENT CASES:
1. No Specific Words Required for Miranda Warnings. Florida v. Powell 175 L.Ed 1009 __ S. Ct. ___ (Dec. 7, 2009)
In a state prosecution for possession of a weapon by a convicted felon, a reversal of defendant's conviction on Miranda grounds is reversed where the police satisfied Miranda's requirements by informing defendant that he had "the right to talk to a lawyer before answering any of their questions," and that he had "the right to use any of his rights at any time he wanted during the interview.
Advice that a suspect has "the right to talk to a lawyer before answering any of [the law enforcement officers'] questions," and that he can invoke this right "at any time . . . during the interview," satisfies Miranda.
2. OPRA Limits Copy Fees to Actual Costs. Smith v. Hudson County __ NJ Super __ (A-1762-08T2 App. Div. February 10, 2010)
Judge Sabatino wrote: "We must bear in mind the public policies underlying the OPRA statute as a whole. The purpose of OPRA is "'to maximize public knowledge about public affairs in order to ensure an informed citizenry and to minimize the evils inherent in a secluded process.'" Mason v. City of Hoboken, 196 N.J. 51, 64 (2008)(quoting Asbury Park Press v. Ocean County Prosecutor's Office, 374 N.J Super. 312, 329 (Law Div. 2004)). Toward that end, the Legislature declared in OPRA, as "the public policy of this State," that "government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions, for the protection of the public interest . . . [.]" N.J.S.A. 47:1A-1(emphasis added). "[Any limitations on the right of access accorded by [the former
RKL][,] as amended and supplemented, shall be construed in favor of the public's right of access." Ibid. These broad legislative findings in favor of "readily accessible" government records have been repeatedly recognized and applied in case law under OPRA. See, e.g., Burnett v. County of Bergen, 198 N.J. 408, 421-22 (2009); Mason, supra, 196 N.J. at 64-65; Times of Trenton Publ'g Corp. v. Lafayette Yard Cmty. Dev. Corp., 183 N.J. 519, 535 (2005); MAG Entm't LLC v. Div. of Alcoholic Beverage Control, 375 N.J. Super. 534, 544 (App. Div. 2005).
These public policies in OPRA favoring reasonable citizen access to government records have long been part of our State's history and tradition. For example, in Moore, supra, 39 N.J. at 30, the Supreme Court acknowledged the "vital importance" of a citizen's right to inspect certain records maintained by the government. Slip op p 28- 29"
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3. Next Community Events:
May 15, 2010
CASA Kids 5K Run 9am Princeton Pike Corporate Center
1009 Lenox Drive Lawrenceville, NJ 08648
When you register, write down under the team category- "RVRR."
May 16, 2010
Jersey Shore Kick Off Sprint Triathlon Men [http://r20.rs6.net/tn.jsp?t=cwmwptdab.0.0.be4bcacab.0&p=http%3A%2F%2Fwww.trifind.com%2Fre_10954%2FJerseyShoreKickOffSprintTriathlonWeekendMen.html&id=preview]
Only Berkeley Island County Park, Bayville (Exit 77 GSP) 6:50am [paid]
Thursday,May 20, 2010
Major Criminal and Traffic Cases Affecting Municipal Court
Borgata Hotel Casino & Spa, Atlantic City
Municipal Court Practice Section 8 - 9:30 a.m.
Up-to-the minute information on the newest cases and procedures affecting New Jersey
municipal court practice.
Speakers:
Hon. Roy McGeady,
PJMC Chair, Presiding Municipal Court Judges Conference
Kenneth Vercammen, Esq.
Past Chair, NJSBA Municipal Court Section, Edison, NJ
Past Municipal Court Attorney of the Year
Past GP Solo Section Attorney of the Year
2006 NJSBA Municipal Court Practitioner of the Year
CD with forms and Materials provided to all attendees!
NJ State Bar Association Annual Meeting and Convention
May 19 - 21, 2010
For Registration information, call the Meetings Department at 732-249-5000. NJSBA,
New Jersey Law Center, One Constitution Square, New Brunswick, NJ 08901-1520.
May 23, 2010
Highland Park 5k 9am
May 27, 2010 12-12:30PM
Avenel Wills and Power of Attorney Seminar
Golden Circle of Avenel
Held at St. Andrews, 244 Avenel St. Avenel, NJ 07001
Speaker: Kenneth Vercammen, Esq. of Edison
(Co-Author- NJ Elder Law & Probate)
For additional information and registration, call Dolores 732-750-2822
Free Program
COMPLIMENTARY MATERIAL: Brochures on Wills, "Probate and Administration of an Estate",
Power of Attorney, Living Wills, Real Estate Sales for Seniors, and Trusts.
May 28, 2010
Legends of Belmar Night- . Join Ken V and friends the Friday night before Spring
Lake 5 race for "Legends Night" in Belmar at D'Jays, Bar A & Columns
June 27
Brendan Vercammen Graduation Party
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
5. If You Are Hurt In an Accident, We Can Help.
If you are hurt in a car, slip and fall or other type of accident, please call us. We are dedicated to providing the highest quality of legal representation to accident victims. We represent accident victims only - Not insurance companies. We Will fight for your rights and try to resolve your claim as fast as possible, with the goal being to obtain the maximum compensation for you. We offer a free, no-obligation
consultation.
Tuesday, May 11, 2010
Monday, May 03, 2010
NJ Laws Email Newsletter E334
NJ Laws Email Newsletter E334
Kenneth Vercammen, Attorney at Law
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
May 5, 2010
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
In This Issue:
1. Graduated Driver License (GDL) Changes
2. Flight from police does not always justify admission of evidence
3. Removing an Executor of an Estate
4. Next Fun Upcoming Running Races 2010 Selected by Kenneth Vercammen
5. South Brunswick Boys Claim GMC Relay Championship.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Office Phone Number:
(732) 572-0500
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
1. Graduated Driver License (GDL) Changes
Pursuant to the provisions of P.L. 2009, c.37, known as "Kyleigh's Law," effective
May 1, 2010 all drivers under age 21, who are subject to the requirements of New Jersey's Graduated Driver License (GDL), which includes those drivers possessing
a special learners permit, examination permit or probationary (formerly provisional)
license, must display a reflectorized decal on each license plate (front/back) of
any motor vehicle they operate.
Details of these mandatory decals are as follows:
· Each 1 1/2 inch by 1 inch, reflectorized decal is red in color and made with removable,3M Dual Locktm material.
· One decal must be displayed on the upper left corner of the front license plate
and one on the upper left corner of the rear license plate.
· Failure to display the decals during operation of a vehicle by a learner's permit,
an examination permit or probationary license holder, who is subject to the GDL
requirements, is a violation subject to a $100 fine. See N.J.S.A. 39:3-13.8.
Graduated Driver License restrictions
In addition to the decal requirement, effective May 1, 2010 New Jersey GDL drivers
will also be subject to the following restrictions:
· May not operate a motor vehicle after 11:01 p.m. and before 5:00 a.m.
· May not use a hand-held or hands-free interactive, wireless communication device.
· Unless over age 21, GDL drivers may only drive with the following passengers
Special Permit Holders: Supervising driver who is over 21 and licensed to drive
for at least three (3) years -Parent(s), guardian(s) or dependent(s) -One additional
passenger unless accompanied by a parent or guardian.
Examination Permit Holders: Supervising driver who is over 21 and licensed to drive
for at least three (3) years -Parent(s), guardian(s) or dependent(s) -One additional
passenger unless accompanied by a parent or guardian
Probationary (formerly Provisional) License Holder Parent(s), guardian(s) or dependent(s)
-One additional passenger unless accompanied by a parent or guardian.
Failure to abide by any GDL restriction during operation of a vehicle by a learner's
permit, an examination permit or probationary license holder, who is subject to
the GDL requirements, is a violation subject to a $100 fine. See N.J.S.A. 39:3-13.8
Source: NJ Police Chief Magazine. Kenneth Vercammen is a contributing writer to
the NJ Police Chief Magazine
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
2. Flight From Police Does Not Always Justify Admission of Evidence. State v Williams 410 NJ Super. 549 (App. Div. 2009)
Flight from an unconstitutional investigatory stop that could justify an arrest
for obstruction does not automatically justify admission of evidence revealed during
that flight. For such evidence to be admissible, there must be a "significant attenuation" between the unconstitutional stop and seizure of evidence.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
3. Removing an Executor of an Estate
Under New Jersey Law, the people selected as an executor of a Will have numerous
legal responsibilities following the death of the person who signed the Will. Primarily,they have a duty to probate the Will, liquidate assets, pay bills and taxes, file all necessary court and tax returns, and then distribute the assets to beneficiaries.
If there is no will, someone can petition the surrogate to be appointed as "administrator" of the estate.
In New Jersey, the court and surrogate do not supervise how an executor or administrator handles the estate. Unfortunately, the Executor occasionally fails to timely carry out their duties. They may fail to file tax returns, fail to keep records, misappropriate funds or ignore instructions under the Will. If you are not satisfied with the handling of the estate, you can have an attorney file a Complaint in the Superior Court.
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.
Duty of Executor in Probate & Estate Administration
1. Conduct a thorough search of the decedent's personal papers and effects for any
evidence which might point you in the direction of a potential creditor;
2. Carefully examine the decedent's checkbook and check register for recurring payments,as these may indicate an existing debt;
3. Contact the issuer of each credit card that the decedent had in his/her possession
at the time of his/ her death;
4. Contact all parties who provided medical care, treatment, or assistance to the
decedent prior to his/her death;
Your attorney will not be able to file the NJ inheritance tax return until it is clear as to the amounts of the medical bills and other expenses. Medical expenses
can be deducted in the inheritance tax.
Under United States Supreme Court Case, Tulsa Professional Collection Services,
Inc., v. Joanne Pope, Executrix of the Estate of H. Everett Pope, Jr., Deceased,
the Personal Representative in every estate is personally responsible to provide
actual notice to all known or "readily ascertainable" creditors of the decedent.
This means that is your responsibility to diligently search for any "readily ascertainable" creditors.
Other duties/ Executor to Do
Bring Will to Surrogate
Apply to Federal Tax ID #
Set up Estate Account at bank (pay all bills from estate account)
Pay Bills
Notice of Probate to Beneficiaries (Attorney can handle)
If charity, notice to Attorney General (Attorney can handle)
File notice of Probate with Surrogate (Attorney can handle)
File first Federal and State Income Tax Return [CPA- ex Marc Kane]
Prepare Inheritance Tax Return and obtain Tax Waivers (Attorney can handle)
File waivers within 8 months upon receipt (Attorney can handle)
Prepare Informal Accounting
Prepare Release and Refunding Bond (Attorney can handle)
Obtain Child Support Judgment clearance (Attorney will handle)
Let's review the major duties involved-
In General. The executor's job is to (1) administer the estate--i.e., collect and
manage assets, file tax returns and pay taxes and debts--and (2) distribute any
assets or make any distributions of bequests, whether personal or charitable in
nature, as the deceased directed (under the provisions of the Will). Let's take
a look at some of the specific steps involved and what these responsibilities can
mean. Chronological order of the various duties may vary.
Probate. The executor must "probate" the Will. Probate is a process by which a Will
is admitted. This means that the Will is given legal effect by the court. The court's
decision that the Will was validly executed under state law gives the executor the
power to perform his or her duties under the provisions of the Will.
Under increasingly complex laws and rulings, particularly with respect to taxes,
in larger estates an executor can be in charge for two or three years before the
estate administration is completed. If the job is to be done without unnecessary
cost and without causing undue hardship and delay for the beneficiaries of the
estate, the executor should have an understanding of the many problems involved
and an organization created for settling estates. In short, an executor should have
experience.
At some point in time, you may be asked to serve as the executor of the estate of
a relative or friend, or you may ask someone to serve as your executor. An executor's
job comes with many legal obligations. Under certain circumstances, an executor
can even be held personally liable for unpaid estate taxes. Let's review the major
duties involved, which we've set out below.
In General. The executor's job is to (1) administer the estate--i.e., collect and
manage assets, file tax returns and pay taxes and debts--and (2) distribute any
assets or make any distributions of bequests, whether personal or charitable in
nature, as the deceased directed (under the provisions of the Will). Let's take
a look at some of the specific steps involved and what these responsibilities can
mean. Chronological order of the various duties may vary.
COMPLAINT FOR ACCOUNTING
A Complaint for Accounting is filed with the Probate Part to request on accounting,
removal of the current executor and selection of a new person to administer and
wrap up the estate.
A signed certification of one or more beneficiaries is needed. In addition, an Order
to Show Cause is prepared by your attorney. The Order to Show Cause is to be signed
by the Judge directing the executor, through their attorney, to file a written answer
to the complaint, as well as appear before the court at a specific date and time.
As with a litigated court matter, trials can become expensive. Competent elder law/probate attorney may charge an hourly rate of $2755-$350 per hour, with a retainer of $3000 needed. Attorneys will require the retainer to be paid in full up front.
The plaintiff can demand the following:
(1) That the named executor be ordered to provide an accounting of the estate to
plaintiff.
(2) Defendant can be ordered to provide an accounting for all assets Defendant dated
five years prior to death.
(3) Payment of plaintiff's attorney's fees and costs of suit for the within action.
(4) Declaring a constructive trust of the assets of the decedent for the benefit
of the plaintiff and the estate.
(5) That the executor is removed as the executor/administrator of the estate and
that Plaintiff is named as administrator of the estate.
(6) That the executor be barred from spending any estate funds, be barred from paying
any bills, be barred from taking a commission, be barred from writing checks, be
barred from acting on behalf of the estate, except as specifically authorized by
Superior Court Order or written consent by the plaintiff.
EXECUTOR'S COMMISSIONS
Executors are entitled to receive a commission to compensate them for work performed.
Under NJSA 3B:18-1 et seq., Executors, administrators and other fiduciaries are entitled to receive a commission on both the principal of the estate, and the income
earned by assets.
However, if you have evidence that the executor has breached their fiduciary duties
or violated a law, your Superior Court accounting complaint can request that the
commissions be reduced or eliminated.
COMPEL SALE OF REAL ESTATE AND OTHER PROPERTY
Occasionally, a family member is living in a home owned by the decedent. To keep
family harmony, often this family member is permitted to remain in the home temporarily.
However, it may later become clear that the resident has no desire on moving, and
the executor has neither an intention to make them move nor to sell the house. The
remedy a beneficiary has can be to have your attorney include in the Superior Court
complaint a count to:
1) Remove the executor
2) Remove the tenant and make them pay rent to the estate for the time they used
the real property since death without paying rent
3) Compel the appraisal of the home and, thereafter, the sale of the property
4) Make the executor reimburse the estate for the neglect or waste of assets.
CONCLUSION
As a beneficiary, you will probably eventually be requested to sign a release and
refunding bond. If you have evidence of misappropriation, you may consider asking
the executor for an informal accounting prior to signing the release and refunding
bond. If you have a concern regarding the handling of an estate, schedule an appointment to consult an elder law attorney.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
4. Next Fun Upcoming Running Races 2010 Selected by Kenneth Vercammen
If you are attending any of these races, please call or email Ken V. Often we car
pool or meet at these events. If you can't run, you can volunteer, or walk the course.
May 9, 2010
Lawrenceville Big Red 5k 10:15
May 15, 2010
CASA Kids 5K Run 9am Princeton Pike Corporate Center 1009 Lenox Drive Lawrenceville,
NJ 08648. When you register, write down under the team category- "RVRR."
May 16, 2010
Jersey Shore Kick Off Sprint Triathlon Men [http://r20.rs6.net/tn.jsp?t=9jzhvsdab.0.0.be4bcacab.0&p=http%3A%2F%2Fwww.trifind.com%2Fre_10954%2FJerseyShoreKickOffSprintTriathlonWeekendMen.html&id=preview]
only Berkeley Island County Park, Bayville (Exit 77 GSP) 6:50am [paid]
May 20, 2010 Bill Scholl Boat ride- not a race.
May 22, 2010
Commotion By The Ocean Rumson Hash- Seaside & Toms River, NJ Free beer includes
great hash, multiple beer checks, lunch (pig-roast), music. Bag vehicle provided.
Bring dry shoes and a change of clothes. Dinner and Dance Party later with live
music, lots of ethnic foods and lots of beer. Prepare a skit of your own or be
amazed by the talents of fellow hashers:
http://sites.google.com/site/comotionbytheoceanrumsonh3 [http://r20.rs6.net/tn.jsp?t=9jzhvsdab.0.0.be4bcacab.0&p=http%3A%2F%2Fsites.google.com%2Fsite%2Fcomotionbytheoceanrumsonh3&id=preview]
May 23, 2010
Highland Park 5k 9am
May 28. 2010
Legends of Belmar Night - Join Ken V and friends the Friday night before Spring
Lake 5 race for "Legends Night" in Belmar at D'Jays, Bar A & Columns
May 29, 2010 Spring Lake 5 mile
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5. South Brunswick boys claim GMC Relays championship [http://r20.rs6.net/tn.jsp?t=9jzhvsdab.0.0.be4bcacab.0&p=http%3A%2F%2Fvercammensport.blogspot.com%2F2010%2F04%2Fsouth-brunswick-boys-claim-gmc-relays.html&id=preview]
By JERRY CARINO · Home News Tribune April 28, 2010
SOUTH BRUNSWICK - It's easy to forget that there's a "field" in track and field,
but the South Brunswick High School boys reminded the rest of the Greater Middlesex
Conference on Wednesday.
The Vikings dominated the throws and jumps to upset perennial favorite Old Bridge
in the GMC Relays. Victories in the triple jump, high jump, discus and javelin buoyed
the Vikings to 102 points and their first county relays crown since 2005. Old Bridge,
which had won this meet four years running, finished with 97 1/2 points after a
strong showing on the track.
"I know we're a deep team, and obviously beating Old Bridge is the benchmark," South
Brunswick coach Wilfredo Rivera said. "It's nice, especially because I always look
at relay meets like it's the complete team."
Brendan Vercammen, David Krier and Cody Stephans got the ball rolling on Tuesday,
winning the javelin with a combined distance of 433 feet, 6 inches during Day 1
of the competition. South Brunswick's discus and shot put trios followed suit, placing first in the former (401-5) and second in the latter (135-7) on Wednesday.
"The javelin was huge," said junior Dominic Padovano, who posted marks of 152 feet
in the discus and 48 feet in the shot. "The three guys who throw discus and shot,
we watched the javelin and that kind of pushed us. We knew we had to perform well."
All told, South Brunswick scored 28 of a possible 30 points in the throws.
"I think we stepped up to the challenge," Padovano said. "We didn't let the team
down.
http://www.mycentraljersey.com/article/20100428/SPORTS0701/4280349/1132/SPORTS07
[http://r20.rs6.net/tn.jsp?t=9jzhvsdab.0.0.be4bcacab.0&p=http%3A%2F%2Fwww.mycentraljersey.com%2Farticle%2F20100428%2FSPORTS0701%2F4280349%2F1132%2FSPORTS07&id=preview]
Brendan Vercammen- County Champ in 3 sports:
Soccer
Wrestling
Track - Javelin Relay and Team Champions
Kenneth Vercammen, Attorney at Law
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
May 5, 2010
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
In This Issue:
1. Graduated Driver License (GDL) Changes
2. Flight from police does not always justify admission of evidence
3. Removing an Executor of an Estate
4. Next Fun Upcoming Running Races 2010 Selected by Kenneth Vercammen
5. South Brunswick Boys Claim GMC Relay Championship.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Office Phone Number:
(732) 572-0500
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
1. Graduated Driver License (GDL) Changes
Pursuant to the provisions of P.L. 2009, c.37, known as "Kyleigh's Law," effective
May 1, 2010 all drivers under age 21, who are subject to the requirements of New Jersey's Graduated Driver License (GDL), which includes those drivers possessing
a special learners permit, examination permit or probationary (formerly provisional)
license, must display a reflectorized decal on each license plate (front/back) of
any motor vehicle they operate.
Details of these mandatory decals are as follows:
· Each 1 1/2 inch by 1 inch, reflectorized decal is red in color and made with removable,3M Dual Locktm material.
· One decal must be displayed on the upper left corner of the front license plate
and one on the upper left corner of the rear license plate.
· Failure to display the decals during operation of a vehicle by a learner's permit,
an examination permit or probationary license holder, who is subject to the GDL
requirements, is a violation subject to a $100 fine. See N.J.S.A. 39:3-13.8.
Graduated Driver License restrictions
In addition to the decal requirement, effective May 1, 2010 New Jersey GDL drivers
will also be subject to the following restrictions:
· May not operate a motor vehicle after 11:01 p.m. and before 5:00 a.m.
· May not use a hand-held or hands-free interactive, wireless communication device.
· Unless over age 21, GDL drivers may only drive with the following passengers
Special Permit Holders: Supervising driver who is over 21 and licensed to drive
for at least three (3) years -Parent(s), guardian(s) or dependent(s) -One additional
passenger unless accompanied by a parent or guardian.
Examination Permit Holders: Supervising driver who is over 21 and licensed to drive
for at least three (3) years -Parent(s), guardian(s) or dependent(s) -One additional
passenger unless accompanied by a parent or guardian
Probationary (formerly Provisional) License Holder Parent(s), guardian(s) or dependent(s)
-One additional passenger unless accompanied by a parent or guardian.
Failure to abide by any GDL restriction during operation of a vehicle by a learner's
permit, an examination permit or probationary license holder, who is subject to
the GDL requirements, is a violation subject to a $100 fine. See N.J.S.A. 39:3-13.8
Source: NJ Police Chief Magazine. Kenneth Vercammen is a contributing writer to
the NJ Police Chief Magazine
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
2. Flight From Police Does Not Always Justify Admission of Evidence. State v Williams 410 NJ Super. 549 (App. Div. 2009)
Flight from an unconstitutional investigatory stop that could justify an arrest
for obstruction does not automatically justify admission of evidence revealed during
that flight. For such evidence to be admissible, there must be a "significant attenuation" between the unconstitutional stop and seizure of evidence.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
3. Removing an Executor of an Estate
Under New Jersey Law, the people selected as an executor of a Will have numerous
legal responsibilities following the death of the person who signed the Will. Primarily,they have a duty to probate the Will, liquidate assets, pay bills and taxes, file all necessary court and tax returns, and then distribute the assets to beneficiaries.
If there is no will, someone can petition the surrogate to be appointed as "administrator" of the estate.
In New Jersey, the court and surrogate do not supervise how an executor or administrator handles the estate. Unfortunately, the Executor occasionally fails to timely carry out their duties. They may fail to file tax returns, fail to keep records, misappropriate funds or ignore instructions under the Will. If you are not satisfied with the handling of the estate, you can have an attorney file a Complaint in the Superior Court.
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.
Duty of Executor in Probate & Estate Administration
1. Conduct a thorough search of the decedent's personal papers and effects for any
evidence which might point you in the direction of a potential creditor;
2. Carefully examine the decedent's checkbook and check register for recurring payments,as these may indicate an existing debt;
3. Contact the issuer of each credit card that the decedent had in his/her possession
at the time of his/ her death;
4. Contact all parties who provided medical care, treatment, or assistance to the
decedent prior to his/her death;
Your attorney will not be able to file the NJ inheritance tax return until it is clear as to the amounts of the medical bills and other expenses. Medical expenses
can be deducted in the inheritance tax.
Under United States Supreme Court Case, Tulsa Professional Collection Services,
Inc., v. Joanne Pope, Executrix of the Estate of H. Everett Pope, Jr., Deceased,
the Personal Representative in every estate is personally responsible to provide
actual notice to all known or "readily ascertainable" creditors of the decedent.
This means that is your responsibility to diligently search for any "readily ascertainable" creditors.
Other duties/ Executor to Do
Bring Will to Surrogate
Apply to Federal Tax ID #
Set up Estate Account at bank (pay all bills from estate account)
Pay Bills
Notice of Probate to Beneficiaries (Attorney can handle)
If charity, notice to Attorney General (Attorney can handle)
File notice of Probate with Surrogate (Attorney can handle)
File first Federal and State Income Tax Return [CPA- ex Marc Kane]
Prepare Inheritance Tax Return and obtain Tax Waivers (Attorney can handle)
File waivers within 8 months upon receipt (Attorney can handle)
Prepare Informal Accounting
Prepare Release and Refunding Bond (Attorney can handle)
Obtain Child Support Judgment clearance (Attorney will handle)
Let's review the major duties involved-
In General. The executor's job is to (1) administer the estate--i.e., collect and
manage assets, file tax returns and pay taxes and debts--and (2) distribute any
assets or make any distributions of bequests, whether personal or charitable in
nature, as the deceased directed (under the provisions of the Will). Let's take
a look at some of the specific steps involved and what these responsibilities can
mean. Chronological order of the various duties may vary.
Probate. The executor must "probate" the Will. Probate is a process by which a Will
is admitted. This means that the Will is given legal effect by the court. The court's
decision that the Will was validly executed under state law gives the executor the
power to perform his or her duties under the provisions of the Will.
Under increasingly complex laws and rulings, particularly with respect to taxes,
in larger estates an executor can be in charge for two or three years before the
estate administration is completed. If the job is to be done without unnecessary
cost and without causing undue hardship and delay for the beneficiaries of the
estate, the executor should have an understanding of the many problems involved
and an organization created for settling estates. In short, an executor should have
experience.
At some point in time, you may be asked to serve as the executor of the estate of
a relative or friend, or you may ask someone to serve as your executor. An executor's
job comes with many legal obligations. Under certain circumstances, an executor
can even be held personally liable for unpaid estate taxes. Let's review the major
duties involved, which we've set out below.
In General. The executor's job is to (1) administer the estate--i.e., collect and
manage assets, file tax returns and pay taxes and debts--and (2) distribute any
assets or make any distributions of bequests, whether personal or charitable in
nature, as the deceased directed (under the provisions of the Will). Let's take
a look at some of the specific steps involved and what these responsibilities can
mean. Chronological order of the various duties may vary.
COMPLAINT FOR ACCOUNTING
A Complaint for Accounting is filed with the Probate Part to request on accounting,
removal of the current executor and selection of a new person to administer and
wrap up the estate.
A signed certification of one or more beneficiaries is needed. In addition, an Order
to Show Cause is prepared by your attorney. The Order to Show Cause is to be signed
by the Judge directing the executor, through their attorney, to file a written answer
to the complaint, as well as appear before the court at a specific date and time.
As with a litigated court matter, trials can become expensive. Competent elder law/probate attorney may charge an hourly rate of $2755-$350 per hour, with a retainer of $3000 needed. Attorneys will require the retainer to be paid in full up front.
The plaintiff can demand the following:
(1) That the named executor be ordered to provide an accounting of the estate to
plaintiff.
(2) Defendant can be ordered to provide an accounting for all assets Defendant dated
five years prior to death.
(3) Payment of plaintiff's attorney's fees and costs of suit for the within action.
(4) Declaring a constructive trust of the assets of the decedent for the benefit
of the plaintiff and the estate.
(5) That the executor is removed as the executor/administrator of the estate and
that Plaintiff is named as administrator of the estate.
(6) That the executor be barred from spending any estate funds, be barred from paying
any bills, be barred from taking a commission, be barred from writing checks, be
barred from acting on behalf of the estate, except as specifically authorized by
Superior Court Order or written consent by the plaintiff.
EXECUTOR'S COMMISSIONS
Executors are entitled to receive a commission to compensate them for work performed.
Under NJSA 3B:18-1 et seq., Executors, administrators and other fiduciaries are entitled to receive a commission on both the principal of the estate, and the income
earned by assets.
However, if you have evidence that the executor has breached their fiduciary duties
or violated a law, your Superior Court accounting complaint can request that the
commissions be reduced or eliminated.
COMPEL SALE OF REAL ESTATE AND OTHER PROPERTY
Occasionally, a family member is living in a home owned by the decedent. To keep
family harmony, often this family member is permitted to remain in the home temporarily.
However, it may later become clear that the resident has no desire on moving, and
the executor has neither an intention to make them move nor to sell the house. The
remedy a beneficiary has can be to have your attorney include in the Superior Court
complaint a count to:
1) Remove the executor
2) Remove the tenant and make them pay rent to the estate for the time they used
the real property since death without paying rent
3) Compel the appraisal of the home and, thereafter, the sale of the property
4) Make the executor reimburse the estate for the neglect or waste of assets.
CONCLUSION
As a beneficiary, you will probably eventually be requested to sign a release and
refunding bond. If you have evidence of misappropriation, you may consider asking
the executor for an informal accounting prior to signing the release and refunding
bond. If you have a concern regarding the handling of an estate, schedule an appointment to consult an elder law attorney.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
4. Next Fun Upcoming Running Races 2010 Selected by Kenneth Vercammen
If you are attending any of these races, please call or email Ken V. Often we car
pool or meet at these events. If you can't run, you can volunteer, or walk the course.
May 9, 2010
Lawrenceville Big Red 5k 10:15
May 15, 2010
CASA Kids 5K Run 9am Princeton Pike Corporate Center 1009 Lenox Drive Lawrenceville,
NJ 08648. When you register, write down under the team category- "RVRR."
May 16, 2010
Jersey Shore Kick Off Sprint Triathlon Men [http://r20.rs6.net/tn.jsp?t=9jzhvsdab.0.0.be4bcacab.0&p=http%3A%2F%2Fwww.trifind.com%2Fre_10954%2FJerseyShoreKickOffSprintTriathlonWeekendMen.html&id=preview]
only Berkeley Island County Park, Bayville (Exit 77 GSP) 6:50am [paid]
May 20, 2010 Bill Scholl Boat ride- not a race.
May 22, 2010
Commotion By The Ocean Rumson Hash- Seaside & Toms River, NJ Free beer includes
great hash, multiple beer checks, lunch (pig-roast), music. Bag vehicle provided.
Bring dry shoes and a change of clothes. Dinner and Dance Party later with live
music, lots of ethnic foods and lots of beer. Prepare a skit of your own or be
amazed by the talents of fellow hashers:
http://sites.google.com/site/comotionbytheoceanrumsonh3 [http://r20.rs6.net/tn.jsp?t=9jzhvsdab.0.0.be4bcacab.0&p=http%3A%2F%2Fsites.google.com%2Fsite%2Fcomotionbytheoceanrumsonh3&id=preview]
May 23, 2010
Highland Park 5k 9am
May 28. 2010
Legends of Belmar Night - Join Ken V and friends the Friday night before Spring
Lake 5 race for "Legends Night" in Belmar at D'Jays, Bar A & Columns
May 29, 2010 Spring Lake 5 mile
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
5. South Brunswick boys claim GMC Relays championship [http://r20.rs6.net/tn.jsp?t=9jzhvsdab.0.0.be4bcacab.0&p=http%3A%2F%2Fvercammensport.blogspot.com%2F2010%2F04%2Fsouth-brunswick-boys-claim-gmc-relays.html&id=preview]
By JERRY CARINO · Home News Tribune April 28, 2010
SOUTH BRUNSWICK - It's easy to forget that there's a "field" in track and field,
but the South Brunswick High School boys reminded the rest of the Greater Middlesex
Conference on Wednesday.
The Vikings dominated the throws and jumps to upset perennial favorite Old Bridge
in the GMC Relays. Victories in the triple jump, high jump, discus and javelin buoyed
the Vikings to 102 points and their first county relays crown since 2005. Old Bridge,
which had won this meet four years running, finished with 97 1/2 points after a
strong showing on the track.
"I know we're a deep team, and obviously beating Old Bridge is the benchmark," South
Brunswick coach Wilfredo Rivera said. "It's nice, especially because I always look
at relay meets like it's the complete team."
Brendan Vercammen, David Krier and Cody Stephans got the ball rolling on Tuesday,
winning the javelin with a combined distance of 433 feet, 6 inches during Day 1
of the competition. South Brunswick's discus and shot put trios followed suit, placing first in the former (401-5) and second in the latter (135-7) on Wednesday.
"The javelin was huge," said junior Dominic Padovano, who posted marks of 152 feet
in the discus and 48 feet in the shot. "The three guys who throw discus and shot,
we watched the javelin and that kind of pushed us. We knew we had to perform well."
All told, South Brunswick scored 28 of a possible 30 points in the throws.
"I think we stepped up to the challenge," Padovano said. "We didn't let the team
down.
http://www.mycentraljersey.com/article/20100428/SPORTS0701/4280349/1132/SPORTS07
[http://r20.rs6.net/tn.jsp?t=9jzhvsdab.0.0.be4bcacab.0&p=http%3A%2F%2Fwww.mycentraljersey.com%2Farticle%2F20100428%2FSPORTS0701%2F4280349%2F1132%2FSPORTS07&id=preview]
Brendan Vercammen- County Champ in 3 sports:
Soccer
Wrestling
Track - Javelin Relay and Team Champions
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