E434 news Jan 22 2014 update Wills and Estate Planning Seminar materials

E434 news Jan 22

2014 update Wills and Estate Planning Seminar materials

       

1. Federal Estate Tax exemption now permanently increased so no tax for Estates under $5,340,000., and will be adjusted annually for inflation. However, New Jersey taxes estates over $675,000.

2. Gifts permitted without Federal Estate & Gift tax was increased to $14,000 per person. 

3. We recommend Self- Proving Wills since witnesses often move or pass away

4. Non-formal writings could be Wills under the New Probate Law

5. Undue influence: Recent cases can void Will signed under suspicious circumstances

6. NJ Inheritance tax

7. Power of Attorney

8. Federal Health Privacy Law (HIPAA)

9. Competency required to sign a Will or Power of Attorney

      1.  Federal Estate Tax exemption is now permanently increased so no tax for Estates under $$5,340,000.,, and will be adjusted annually for inflation. However, New Jersey taxes estates over $675,000.

Federal Exemption Amount for Non-Citizen Spouses is $145K up from $143K.

        New Jersey has an Estate Tax on amounts over $675,000.  So, even if no Federal Estate Tax due, the estate must still file a Federal Estate Tax Return, plus NJ Estate Tax Return.

          So, for an unmarried or widowed person with assets of $1,000,000, there is No Federal Estate Taxes, but  the Estimated State Estate Tax:  $33,200.00    For  an unmarried or widowed person with assets of $1,500,000, estimated NJ Estate Tax is over $60,000.  The Federal Tax rate on estates over $5,250,000 has been increased from 35% to 40%. 

           How to avoid NJ Estate Tax- hire an attorney to set up a personal residence trust or irrevocable trust and have the assets taken out of your name and put into a trust or given to children and grandchildren in the trust. Minimum fees for trust are $3,000. This is probably not something a non-attorney can do on their own. It is illegal for a non-attorney to provide legal advice or prepare most legal documents. 

2. Gifts permitted without Federal Estate & Gift tax was increased to $14,000 per person.          

           However, the amount permitted for Medicaid transfers is zero.  

3. We recommend Self- Proving Wills since witnesses often move or pass away

        An old New Jersey Probate law required one of the two witnesses to a Will to travel and appear in the Surrogate’s office and sign an affidavit to certify they were a witness. This often created problems when the witness was deceased, moved away, or simply could not be located.  Some witnesses would require a $500 fee to simply sign a surrogate paper. My Grandmother’s Will was not self- proving, and the witness to Will extorted a $500 fee.

        The New Jersey Legislature later passed a law to create a type of Will called a “Self-Proving Will.”  In such a Will, the person for whom the Will is made must sign.  Then two witnesses sign.  Then the attorney or notary must sign; with certain statutory language to indicate the Will is self-proving.  Beware of online documents not prepared by an attorney

            When done properly, the executor does not have to locate any witnesses.  This usually saves time and money.  If your Will is not “self-proving” or if you are unsure, schedule an appointment with an elder law attorney. Some law offices ignore the revised law, and fail to prepare self proving Wills. Do not use a law office that follows old methods and does not do a self-proving Will.

4. NJ SENATE Law No. 708 made a number of substantial changes to the NJ Probate Law.

      Non-formal writings could be Wills under the Revised provisions governing the administration of estates and trusts in New Jersey.  So make sure you have a Formal Will drafted by an estate attorney.

     The law expanded 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. Possibly a Christmas card with handwritten notes could be presented as a Will or Codicil.

  To present a non-formal Will or writing requires an expensive Complaint and Order to Show Cause to be filed in the Superior Court, and a hearing in front of a Superior Court Judge.

  Be careful; have a Will done properly by an experienced attorney.

   Beware of the “Elective share” rights of a new spouse. Have a Prenuptial Agreement if entering into a 2^nd marriage

        The elective share provisions of the present Code has still not been changed yet.  Currently, the new 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, even if only married for 2 weeks. The spouse must file a Caveat or lawsuit in Superior Court.  We suggest a formal prenuptial agreement in 2^nd marriage situations.

            A Testator now means both male and female individuals, removing the term “Testatrix”. Will forms that say executrix should not be used.

        The law provides a statute of limitations with respect to creditor claims against a decedent's estate. There is no longer a need to publish a Notice Limiting Creditors.

5. NJ Supreme Court has held a Will could be void if signed under suspicious circumstances

           When there is a confidential relationship coupled with suspicious circumstances, undue influence is presumed and the burden of proof shifts to the Will proponent to overcome the presumption. 

        If there is undue influence in making of Will and transfer by Deed of a house by persons in Confidential relationship, this could subject those persons to punitive damages in some instances, plus voiding of the Will. In the Matter of the Estate of Madeleine Stockdale, Deceased 196 NJ 275 (2008)

        A grievance based upon undue influence may be sustained by showing that the beneficiary had a confidential relationship with the party who established the account. See Estate of DeFrank, ___ N.J. Super. ___, ___ (2013) (slip op. at 13). Accordingly,

        if the challenger can prove by a preponderance of the evidence that the survivor had a confidential relationship with the donor who established the account, there is a presumption of undue influence, which the surviving donee must rebut by clear and convincing evidence.

[Estate of Ostlund v. Ostlund, 391 N.J. Super. 390, 401 (App. Div. 2007).]

        Although perhaps difficult to define, the concept "encompasses all relationships 'whether legal, natural or conventional in their origin, in which confidence is naturally inspired, or, in fact, reasonably exists.’” Pascale v. Pascale, 113 N.J. 20, 34 (1988) (internal citation omitted). "And while family ties alone may not qualify, parent-child relationships have been found to be among the most typical of confidential relationships." DeFrank, supra, slip op. at 13 (citing Ostlund, supra, 391N.J. Super. at 401).

        In the context of inter vivos gifts, "a presumption of undue influence arises when the contestant proves that the donee dominated the will of the donor or when a confidential relationship exists between the donor and done." Pascale, supra, 113 N.J. at 30 (internal citations omitted). "Where parties enjoy a relationship in which confidence is naturally inspired or reasonably exists, the person who has gained an advantage due to that confidence has the burden of proving that no undue influence was used to gain that advantage," In re Estate of Penna,322 N.J. Super. 417, 423 (App. Div. 1999), and "the donee has the burden of showing by clear and convincing evidence not only that 'no deception was practiced therein, no undue influence used, and that all was fair, open and voluntary, but that it was well understood.'" In re Estate of Mosery, 349 N.J. Super. 515, 522-23 (App. Div. 2002) (citing In re Dodge, 50 N.J. 192, 227 (1967)).

The person receiving gifts and greater benefit had a burden to show no deception was practiced and that all of the transactions were fair, open and voluntary, and that they were well understood.  

        Wills should be prepared without undue influence. No one other than the person who is signing the Will should be in the room. We usually request the person who wants the Will to fill out the interview form themselves.

6. NJ Inheritance tax

      The NJ Inheritance Tax Return instructions and NJ Estate Tax Forms were revised in 2011. Throw out old forms.  Even if no inheritance tax due, a Tax Waiver on a house must still be obtained and filed if the house was not co-owned by the spouse.

7. Power of Attorney

        Do not use a form purchased online. A Power of Attorney should contain reference to the NJ statute requiring banks to honor the Power of Attorney. Section 2 of P.L. 1991, c. 95 (c. 46:2B-11).

8. Federal Health Privacy Law (HIPAA)

        The federal regulation known as the Health Insurance Portability and  Accountability Act (HIPAA) was adopted regarding disclosure of individually identifiable health information. This necessitated the addition of a special release and consent authority to all healthcare providers before medical information will be released to agents and interested persons of the patients.     

       The effects of HIPAA are far reaching, and can render previously executed estate planning documents useless, without properly executed amendments, specifically addressing these issues.

        Any previously executed Powers of Attorney, Living Wills, Revocable Living Trusts, and certainly all Medical Directives now require HIPAA amendments.   

        Powers of attorneys and Living Wills should be updated to reference this new law. More information on the HIPAA law at http://www.njlaws.com/hipaa.htm

      After you sign the Living Will in your attorney’s office, provide a copy to your doctor and family.

9. Competency required to sign a Will or Power of Attorney

        My law office cannot prepare a Power of Attorney, Will or any other legal document unless a person is mentally competent. If someone is unable to come into our office, we require the client or client’s family to have the treating Doctor sign the “Doctor Certification of Patient Capacity to Sign Legal Documents” It is the client or client’s family’s responsibility to contact the doctor, obtain the signed Certification at the clients’ expense, and then provide the law office with the original signed Certification. The law office cannot accept phone calls stating someone is competent. Therefore, it is wise do have your documents drafted while you can drive and are healthy.

More information on Wills and Probate at

www.CentralJerseyElderLaw.com

E433: 1. New Year's Resolution - Put your Estate Planning in Order. 2. You are invited to 2014 update Wills and Estate Planning 3. Domestic Violence Defense

NJ LAWS EMAIL NEWLETTER E433

Kenneth Vercammen, Attorney at Law

January 7, 2014

1. New Year's Resolution - Put your Estate Planning in Order.

     You need a Power of Attorney and Living Will / Advance Directive. Modern medicine and machinery can keep a person alive for long periods of time.

     Unfortunately, a person is often kept alive in great pain or under circumstances that render him or her unconscious to everything around them, while causing pain and anguish to the family.

       Our state has passed a "Living Will" law, often called a "Death with Dignity" law, which allows a person to direct that heroic measures not be taken to prolong life in these unhappy situations.

       This "Living Will" is not a substitute for a regular Will, which affects property rights. The "Living Will" is an independent document to be signed in addition to your regular Will.

     Please let us know if you want a Living Will / Advance Directive prepared.

       I would like to thank my friends for another good year, despite the bad economy. This year was our single best year for referrals. So many of you were kind enough to tell others about our services and recommend us. Since 1985, I have helped individuals and businesses with legal matters. With changing laws, it is important that your estate planning documents are updated to reflect your most valuable investments. As you know, all businesses must grow, and one of the safest ways to grow is to get referrals from satisfied clients. Thank you for referring friends and family. May the New Year bring happiness and good health to you and those you love.

2. You are invited to 2014 update Wills and Estate Planning; Free Seminars: Tuesday, Jan 14, 2014 at 12:15-1:00 PM & also Wed Jan 15, 2014 at 5:15pm-6pm

       Invited: Clients, Friends, Accountants, Business Owners, HR staff, Financial Planners, Insurance Agents, Nursing Home Staff, Hospital and Nursing Home Social Workers, Office on Aging Personnel, Senior Club Presidents, and Medicaid Workers.

       Location: Law Office of Kenneth Vercammen, 2053 Woodbridge Ave, Edison, NJ 08817

          COST: Free if you pre-register. Complimentary materials provided at 12:00PM sharp. This program is limited to 15 people. Please bring a canned food donation, which will be given to the St. James Food Bank located on Woodbridge Avenue in Edison, NJ. Please email us if you plan on attending or if you would like us to email the materials.

SPEAKER: Kenneth Vercammen, Esq.

                (Author- Answers to Questions About Probate)

The NJ Probate Law made a number of substantial changes in Probate and the administration of estates and trusts in New Jersey.

Main Topics:

1.   The New Probate Law and preparation of Wills                 

2.   2014 changes in Federal Estate and Gift Tax exemption

3.   NJ Inheritance tax $675,000

4.   Power of Attorney                        

5.   Living Will                                          

6.   Administering the Estate/ Probate/Surrogate                       

7.   Question and Answer                   

      COMPLIMENTARY MATERIAL: Brochures on Wills, "Answers to Questions about Probate" and Administration of an Estate, Power of Attorney, Living Wills, Real Estate Sales for Seniors, and Trusts.

       To attend or for Information: Mike McDonald 732-572-0500

or email VercammenLaw@Njlaws.com

       Can't attend? We can email you materials

Send email to VercammenLaw@Njlaws.com

http://www.njlaws.com/Estate-Planning-seminar.htm

3. DOMESTIC VIOLENCE DEFENSE

by Kenneth A. Vercammen, Esq.

   

   New Jersey domestic violence laws are very strict. A spouse or girlfriend could call the police and if there are any signs of physical injuries the police must arrest the man. Even without independent witnesses and no physical injuries, police may arrest the man. The police are required to give the victim information about their rights and to help them. Among other things, police must write up a report. For example, O.J. Simpson would not have gotten away with abuse in New Jersey. Police are automatically required to arrest an abuser if they see any evidence of abuse or assault.

             

   Even during the evening, your town Municipal Court or Superior Court can issue a Restraining Order, which is a legally enforceable document. The Temporary Restraining Order (TRO) will prohibit the defendant/abuser from any contact with the victim or entering the residence.

             

  Unlike a criminal case where a person is provided with lengthy due process rights, and if guilty receives probation and a monetary fine, a domestic violence hearing allows judges to issue far-reaching orders. A domestic violence hearing is usually held within only ten (10) days after the filing of an ex parte complaint and temporary restraining order. After a hearing, NJSA 2C:25-29 (b) allows the Chancery Division, Family Part Judge to grant substantial relief to the complainant.

             

  Our Supreme Court has already found that the ten-day provision comports with the requirements of due process, but can be delayed.

  In H.E.S. v. J.C.S., 175 N.J. 309, 323 (2003), the Court held: "the ten-day provision does not preclude a continuance where fundamental fairness dictates allowing a defendant additional time. Indeed, to the extent that compliance with the ten-day provision precludes meaningful notice and an opportunity to defend, the provision must yield to due process requirements." [Internal quotations and citations omitted.]

       Discovery not mandatory in Domestic Violence family cases

  Domestic violence actions are "summary actions," a fact that inherently precludes the right to discovery. See, e.g., H.E.S., supra, 175 N.J. at 323. However, the Appellate Division in Crespo v Crespo 408 NJ Super. 25 (App. Div. 2009) noted that one trial court has determined that, in accordance with Rule 5:5-1(d), a defendant may seek leave to obtain discovery in such a matter upon a showing of good cause. Depos v. Depos,307 N.J. Super. 396, 400 (Ch. Div. 1997). The Appellate Court agreed with the opinion of Judge Dilts in Depos that in compelling circumstances, where a party's ability to adequately present evidence during a domestic violence action may be significantly impaired, a trial judge may, in the exercise of sound discretion, permit limited discovery in order to prevent an injustice. Judges are not required to be oblivious to a party's claim for discovery in compelling circumstances even though the court rules do not expressly authorize relief. See, e.g., Kellam v. Feliciano, 376 N.J. Super. 580, 587 (App. Div. 2005). 

  The Crespo court held "Here, the record reveals that at no time did defendant seek leave to conduct any discovery proceedings." Therefore, it is important for defense counsel to demand discovery.

   In Pepe v Pepe, 258 N.J. Super. 157 (Chan. Div. 1992) held that the confidentiality provision of record keeping under the Domestic Violence act applies to the records kept on file with the Clerk of the Superior Court.

The Family Judge Powers:

At the hearing the judge of the Family Part of the Chancery Division of the Superior Court may issue an order granting any or all of the following relief:

(1) An order restraining the defendant from subjecting the victim to domestic violence, as defined in this act.

(2)  An order granting exclusive possession to the plaintiff of the residence or household regardless of whether the residence or household is jointly or solely owned by the parties or jointly or solely leased by the parties.  This order shall not in any manner affect title or interest to any real property held by either party or both jointly.  If it is not possible for the victim to remain in the residence, the court may order the defendant to pay the victim's rent at a residence other than the one previously shared by the parties if the defendant is found to have a duty to support the victim and the victim requires alternative housing.

(3)  An order providing for parenting time.

(4) An order requiring the defendant to pay to the victim monetary compensation for losses suffered as a direct result of the act of domestic violence.  The order may require the defendant to pay the victim directly, to reimburse the Victims of Crime Compensation Board for any and all compensation paid by the Victims of Crime Compensation Board directly to or on behalf of the victim, and may require that the defendant reimburse any parties that may have compensated the victim, as the court may determine.  Compensatory losses shall include, but not be limited to, loss of earnings or other support, including child or spousal support, out-of-pocket losses for injuries sustained, cost of repair or replacement of real or personal property damaged or destroyed or taken by the defendant, cost of counseling for the victim, moving or other travel expenses, reasonable attorney's fees, court costs, and compensation for pain and suffering. Where appropriate, punitive damages may be awarded in addition to compensatory damages.

(5) An order requiring the defendant to receive professional domestic violence counseling from either a private source or a source appointed by the court and, in that event, requiring the defendant to provide the court at specified intervals with documentation of attendance at the professional counseling.  The court may order the defendant to pay for the professional counseling.

(6) An order restraining the defendant from entering the residence, property, school, or place of employment of the victim or of other family or household members of the victim and requiring the defendant to stay away from any specified place that is named in the order and is frequented regularly by the victim or other family or household members.

(7) An order restraining the defendant from making contact with the plaintiff or others, including an order forbidding the defendant from personally or through an agent initiating any communication likely to cause annoyance or alarm including, but not limited to, personal, written, or telephone contact with the victim or other family members, or their employers, employees, or fellow workers, or others with whom communication would be likely to cause annoyance or alarm to the victim.

(8) An order requiring that the defendant make or continue to make rent or mortgage payments on the residence occupied by the victim if the defendant is found to have a duty to support the victim or other dependent household members; provided that this issue has not been resolved or is not being litigated between the parties in another action.

(9) An order granting either party temporary possession of specified personal property, such as an automobile, checkbook, documentation of health insurance, an identification document, a key, and other personal effects.

(10) An order awarding emergency monetary relief, including emergency support for minor children, to the victim and other dependents, if any.  An ongoing obligation of support shall be determined at a later date pursuant to applicable law.

(11) An order awarding temporary custody of a minor child....

(12) An order requiring that a law enforcement officer accompany either party to the residence or any shared business premises to supervise the removal of personal belongings in order to ensure the personal safety of the plaintiff when a restraining order has been issued.  This order shall be restricted in duration..

(13)     An order granting any other appropriate relief for the plaintiff and dependent children, provided that the plaintiff consents to such relief, including relief requested by the plaintiff at the final hearing, whether or not the plaintiff requested such relief at the time of the granting of the initial emergency order.

(14) An order that requires that the defendant report to the intake unit of the Family Part of the Chancery Division of the Superior Court for monitoring of any other provision of the order.

(15) In addition to the order required by this subsection prohibiting the defendant from possessing any firearm, the court may also issue an order prohibiting the defendant from possessing any other weapon enumerated in subsection r. of N.J.S.2C:39-1 and ordering the search for and seizure of any firearm or other weapon at any location where the judge has reasonable cause to believe the weapon is located.  The judge shall state with specificity the reasons for and scope of the search and seizure authorized by the order.

(16) An order prohibiting the defendant from stalking or following, or threatening to harm, to stalk or to follow, the complainant or any other person named in the order in a manner that, taken in the context of past actions of the defendant, would put the complainant in reasonable fear that the defendant would cause the death or injury of the complainant or any other person.

(17) An order requiring the defendant to undergo a psychiatric evaluation.

             Despite the substantial financial burden and life restrictions (often referred to as penalties), the burden of proof in a DOMESTIC VIOLENCE hearing is only "by a preponderance of evidence" and not "beyond a reasonable doubt."

             Too often lawyers throw up their hands when a client presents a complaint involving domestic violence and related criminal charges. While defense of the complaint may become an involved process requiring commitment and persistence, there are a number of viable defenses and arguments that can achieve a successful result. Rather than simply suggest that a client plead guilty and avoid trial, an attorney should accept the challenge and apply his best legal talents to protect the client's rights.

We require a great deal of cooperation from our clients in an effort to help keep their costs reasonable. We require our clients to prepare diagrams and provide us with the names, addresses, and telephone numbers of witnesses.

Sometimes a family friend can act as a go between for the parties and convince the complaint to dismiss the charges. A DOMESTIC VIOLENCE complainant can be withdrawn. However, if a criminal complaint is signed by the police, only the prosecutor can make a motion to dismiss. More information to be provided in next week's edition.

Editorial assistance provided by Winne Chen who attends New York University and is majoring in English. Ms. Chen is currently participating in Kenneth Vercammen's Winter Break Internship Program. 

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 Follow Us On: Facebook Linkedin