2053 Woodbridge Avenue - Edison, NJ 08817

Saturday, October 13, 2012

E406 1. Recommendation for Tax Planning now if husband and wife's total assets including life insurance exceeds $675,000. 2. Recent Cases: Expert Cannot Testify that Activity was Drug Distribution. 3. Post-Conviction Motion may be available where Trial Attorney Provided Wrong Advice. 4. 2012 Municipal Court College

NJ Laws Email Newsletter E406
Kenneth Vercammen, Attorney at Law   

October 10, 2012

Office Phone Number:   
(732) 572-0500 

In This Issue:
1.  Recommendation for Tax Planning now if husband and wife's total assets including life insurance exceeds $675,000. 

2.  Recent Cases: Expert Cannot Testify that Activity was Drug Distribution.  

3.  Post-Conviction Motion may be available where Trial Attorney Provided Wrong Advice.  

4.   2012 Municipal Court College



1. Recommendation for Tax Planning now if husband and wife's total assets including life insurance exceeds $675,000.

              A New Jersey estate tax return must be filed if the decedent's gross estate plus adjusted taxable gifts as determined in accordance with the provisions of the Internal Revenue Code in effect on December 31, 2001 exceeds $675,000. It must be filed within nine months of the decedent's death (nine months plus 30 days if the Form 706 method is used). Additionally, a copy of any Federal estate tax return filed or required to be filed with the Federal government must be submitted within 30 days of the date it is filed with the Internal Revenue Service and a copy of any communication received from the Federal government must be submitted within 30 days of its receipt from the Internal Revenue Service.

  The NJ Estate Tax is in addition to any NJ Inheritance Tax.

Who Must File
     A New Jersey estate tax return must be filed if the decedent's Gross Estate exceeds $675,000. There is substantial taxes that must be paid after the 2nd spouse dies on amounts over $675,000. You can hire an attorney to set up Trusts to try to reduce taxes due. We charge a minimum fee of $600 for each trust within a Will. A separate stand alone Trust has a minimum fee for $2,000.

    Even if your net worth is well below the threshold where the federal estate tax becomes an issue, the New Jersey Estate Tax may still be a problem. The New Jersey Estate Tax affects any person or married couple with net worth over $675,000. There is no exemption for assets you leave to your children; those assets are fully taxed. There is also no exemption for the value of your home and life insurance, so it is easy to hit the $675,000 threshold very quickly.

     The Credit Shelter Trust (sometimes referred to as a "Bypass Trust" or an "A/B Trust") is a popular estate planning technique used by married couples with combined assets in excess of $675,000. The purpose of the Credit Shelter Trust is to avoid the wasting of federal and state exemptions on the death of the first spouse. Instead of leaving all assets to the surviving spouse and thereby exposing the surviving spouse's estate to more tax, both spouse's Wills are drafted to establish a Credit Shelter Trust to come into existence and be funded on the first spouse's death.
    In a typical Credit Shelter Trust, the surviving spouse is entitled to receive all of the income from the Trust for his or her lifetime, and has the right to demand principal distributions for his or her health, education, support and maintenance in his or her accustomed manner of living. Distributions in excess of that standard require the cooperation of a Co-Trustee - often an adult child of the surviving spouse or a trust department of a bank.
  The amount, which funds a typical Credit Shelter Trust, varies according to a particular Client's financial and family circumstances. For Federal Estate Tax purposes, a Credit Shelter Trust can be funded with the Decedent's remaining federal estate tax exemption ($5 million as of 2012 if no prior gifts have been made). However, in New Jersey, since the state estate tax exemption is only $675,000, if the Credit Shelter Trust is funded with more than $675,000, this will cause some New Jersey Estate Tax to be paid. For example, if the $2 million is funded, the tax to the State of New Jersey is $99,600. Because of this, many Clients choose to fund the Credit Shelter Trust with only $675,000.
   If the Credit Shelter Trust technique is implemented as part of a Client's Estate Plan, you can hire the attorneys for a separate fee to assist the Client in re-titling his or her assets so that assets are available to fund the Credit Shelter Trust. Re-titling is necessary because most Clients tend to hold assets jointly with right of survivorship and assets must be titled individually in a person's name in order to be eligible to fund a Credit Shelter Trust. We work with a tax attorney to help our clients.

Please call today to schedule a confidential appointment for estate planning 732-572-0500

Examples of NJ Estate Tax due if no estate planning
Estate of $800,000
Your Estimated Federal Estate Tax:  0.00

Your State Taxable Estate Value:  $740,000.00

Your Estimated State Estate Tax:  $22,799.60

If Estate Value:  $900,000.00

Your Estimated Federal Estate Tax:  $0.00

Your State Taxable Estate Value:  $840,000.00

Your Estimated State Estate Tax:  $27,600.00


If Estate Value: $1,000,000.00

Your Estimated Federal Estate Tax:  $0.00


Your State Taxable Estate Value:  $940,000.00

Your Estimated State Estate Tax:  $33,200.00

Estate Value:  $1,100,000.00

Your Estimated Federal Estate Tax:  $0.00

Your State Taxable Estate Value:  $1,040,000.00

Your Estimated State Estate Tax:  $38,800.00

Estate Value: $1,200,000.00

Your Estimated Federal Estate Tax:  $0.00


Your State Taxable Estate Value:  $1,140,000.00

Your Estimated State Estate Tax:  $45,200.00


Estate Value:  $1,300,000.00

Your Estimated Federal Estate Tax:  $0.00

Your State Taxable Estate Value:  $1,240,000.00

Your Estimated State Estate Tax:  $51,600.00

       We recommend tax planning when the husband and wife own over $700,000 in assets.
When an Estate Tax Return Is Required
  If you're a New Jersey resident and leave assets with a gross value of more than $675,000, the executor of your estate will have to file a New Jersey estate tax return. (Federal estate tax returns are required only for estates of more than $5.12 million in 2012, but this amount may change in 2013.) The New Jersey estate tax does not apply to nonresidents, even if they own valuable New Jersey real estate or other property.
    The value of your gross estate is calculated by adding up all of the assets you own at death, including:
Real estate in New Jersey
Bank accounts and certificates of deposit
 Investment accounts and securities
Vehicles and other items of personal property
Proceeds from insurance policies on your life, unless you didn't own the policy
Retirement account funds
Small business interests (sole proprietorship, limited liability company, or small corporation)
It doesn't matter, for tax purposes, whether or not any of your assets go through probate at your death. Real estate in a living trust, a retirement account for which you've named a beneficiary, a jointly owned bank account-it all gets counted.

Some other less obvious assets are also included:
taxable gifts you made during life (more than the federal gift tax annual exclusion amount, currently $13,000 per year per recipient).
proceeds of any life insurance policy you transferred to an irrevocable life insurance trust within three years before death.
Property you leave to your spouse or civil union partner is exempt from state estate tax, no matter what the amount. 

This differs from federal law, which does not treat same-sex couples, whether they are legally married under state law or civil union partners, like married couples.    
More information on Estate Tax is available on our website: http://www.njlaws.com.

2. Recent Cases   Expert Cannot Testify that Activity was Drug Distribution. State v. Jones 425 NJ Super. 258 (App. Div. 2012)
      The court reversed defendant's drug distribution conviction, concluding that: 1) the testimony provided by the State's drug distribution expert, on whether defendant possessed the cocaine for personal use or instead for distribution, ran afoul of the proscriptions in State v. McLean, 205 N.J. 438 (2011), and State v. Odom, 116 N.J. 65 (1989); and 2) the admission of evidence that defendant possessed oxycodone denied him a fair trial, as he was not charged with that offense, and the State should not have been permitted to use such N.J.R.E. 404(b) evidence to bolster its contention that defendant possessed the cocaine with the intention of selling it. [This case limits experts ability to testify in other cases on the main subject matter of the case]

3. Post-Conviction Motion may be available where Trial Attorney Provided Wrong Advice. State v. Barros 425 NJ Super. 329 (App. Div. 2012)
      In this case, the court previously applied Padilla v. Kentucky, 559 U.S. __, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), and affirmed the grant of post-conviction relief based on defendant's assertion that his attorney did not advise him that his guilty plea in 2008 to drug distribution charges subjected him to mandatory deportation. The Supreme Court granted the State's petition for certification and remanded for the court's reconsideration in light of State v. Gaitan, __ N.J. __ (2012), which held that Padilla announced a new rule applicable only to guilty pleas entered after Padilla was decided. In light of Gaitan, the court reversed the grant of post-conviction relief but also stayed its judgment to allow defendant to seek habeas corpus relief in federal court in light of the Third Circuit's determination in United States v. Orocio, 645 F.3d 630 (3d Cir. 2011), that Padilla does not constitute a new rule. 
4.   2012 Municipal Court College
October 29, 2012
5:30 PM - 9:00 PM

A guide to handling municipal court matters in your practice and a "crash course" designed to build your skills!
       This information-packed program is designed for attorneys who do not concentrate in Municipal Court law, including practitioners seeking to expand into this practice area & attorneys looking to create a niche practice. Seasoned Municipal Court lawyers will learn new skills and obtain CLE credits.

You'll "go back to school" to attend 6 half hour segments and panel discussions that will provide you with a working knowledge of municipal court law basics. You'll quickly be able to represent clients in a wide range of matters you would normally have had to refer to others. Gain confidence in your ability to handle Municipal Court matters. Make an investment in your legal career and register today!!

Program Agenda:

Program Agenda:
5:30   Opening
5:35 Initial client interview; getting retained; dealing with the prosecutor. Plus an update on the conditional dismissal program by Kenneth A. Vercammen, Esq.
6:05 Driving While Suspended by Damian A. Scialabba, Esq. 
6:35 Drug Cases and DREs by Norma M. Murgado, Esq.
7:15 Assault and miscellaneous proceedings by William D. Feingold, Esq.
7:45 DWI and Blood by John Menzel, Esq.
8:15 Alcotest; Ignition Locks; Alcotest Refusal by John Menzel, Esq.
8:45 Q&A and closing comments
9:00 Adjourn

Who should attend:
Judges & Prosecutors
General practitioners
Criminal law practitioners
Municipal Court law practitioners
New attorneys
Members of law enforcement

Gain insight and information that will help you represent clients in every aspect of Municipal Court law, including:

Initial interview getting, retained and dealing with the prosecutor, Driving while suspended, Drug cases and DRE, Assault and miscellaneous DWI; Blood, DWI Alcotest

Past Chair, NJSBA Municipal Court Section
Past GP Solo Section Attorney of the Year
2006 NJSBA Municipal Court Practitioner of the Year
K. Vercammen & Associates (Edison)

Law Offices of John Menzel (Point Pleasant)
Chief Prosecutor (Elizabeth)
Assistant Prosecutor (Woodbridge)
Murgado & Carroll, Esq. (Elizabeth)


Prosecutor (Metuchen)
Prosecutor (Carteret)
Includes seminar, 400 page book, CD with over 1,000 pages of forms, dinner, coffee, desert Tuition ranges between $145- $189 depending on NJSBA membership Call Phone: (732)214-8500  Seminar # _______

NJ CLE information: This program has been approved by the Board on Continuing Legal Education of the Supreme Court of New Jersey for 4.0 hours of total CLE credit. Of these, 4.0 qualify as hours of credit toward certification in criminal trial law.

Location: New Jersey Law Center
One Constitution Square
New Brunswick, NJ 08901
NJICLE, A Division of the NJSBA NJ State Bar Association


Up to 12 of your 24 New Jersey MCLE credits can be earned via Audio CDs, Webinars & MP3s.
Order your audio package and earn New Jersey MCLE credits at your convenience.

Presented in cooperation with the NJSBA Municipal Court Practice Section and the NJSBA Young Lawyers Division

2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax)   732-572-0030