NJ LAWS EMAIL NEWSLETTER E436
Kenneth Vercammen, Attorney at Law
February 5, 2014
In this Issue:
1. Administrator of a Decedent's Estate Where there is No Will- Duties and Responsibilities.
2. Prosecution Should Not Interfere with Defense Ability to Interview Witnesses.
3. Police Officer Reading Inaccurate DWI Refusal Warning is not a Defense to Refusal Charge.
4. New YouTube informational Video of the Week: Administration of an Estate
1. Administrator of a Decedent's Estate Where there is No Will- Duties and Responsibilities.
Call our office to schedule a Will consult. A portion of your Estate Planning is Tax deductible for income tax purposes.
Compiled by Kenneth A. Vercammen, Esq.
When a person dies without having a Willthat is called intestate.
The administration must be opened in the County where the decedent resided at his/her death.
The person who is seeking to qualify as Administratormust bring into the Surrogate's office a certified copy of the death certificate, a complete list of names and addresses of all immediate next of kin of the decedent, and an exact amount of every asset in the decedent's name alone. Your right to act as an Administrator is defined by law in the following relationship order:
FIRST - Spouse of the decedent
SECOND - Children of the decedent
THIRD - Parents of the decedent
FOURTH - Brothers and sisters of the decedent
FIFTH - Children of a deceased brother or sister
Persons having a prior or equal right to act as Administrator under the law will be required to renouncetheir right to act.
Who has the right to be appointed when an individual dies without a Will? The next of kin of the decedent have the right to be appointed. This is determined by statute. The surviving spouse or domestic partner has the first right. Children of the decedent are next. However, any heir may be appointed assuming they obtain the appropriate renunciations from any other heir who has an equal or prior right to be appointed.
If all the children agree that one person shall serve as administrator, the Attorney will prepare Renunciations for the other children to sign. However, if some of the children will not sign, you will need to have your attorney file and Complaint and Order to Show Cause to have you appointed as the Administrator.
What do I bring if the decedent dies without a Will? You must still go through the probate process. You will be required to bring:
A certified death certificate;Renunciations, if applicable, from parties not willing to serve as administrator.
A list of the decedent's assets and an approximate value of each.
You must provide the Make, Model and Vin number for any car in the decedent's name alone
You must provide Bank Account information i.e. Bank name, Account number and most recent statement.
In most cases, a surety bond will be required in order to appoint an Administrator. The purpose of the bond is to protect all heirs and creditors of the estate. Pursuant to New Jersey statutes, N.J. S.A. 3B:15 15-1, the order of appointment includes a requirement that the Administrator post bond. The Surrogate sets the bond amount based on the total amount of the estate. The applicant may choose the insurance agency they wish to work with. The bonding agency usually require an attorney to represent the estate to assure payment of the bond premium. The bond must be executed before the Administrator will be appointed. Once the estate is closed and all the debt has been paid and the money has been distributed, a Refunding Bond and Release must be filled out by every beneficiary of the estate, including the Administrator, in order to get released from the bond.
If the applicant qualifies as the Administrator, Letters of Administration and a short certificate will be issued by the Surrogate. A short certificate is the document the Administrator will use as proof of their authority to transfer or sell the decedent's assets.
What happens if I can't find the Original Will? If the original Will cannot be found, the next of kin to the deceased would come to the Surrogate Court to make application for Administration.
What is a Surety Bond and why do I need to get one? A surety bond is an insurance policy that protects the beneficiaries and creditors of the estate. Administrators are required by law to obtain a surety bond in order to be appointed. Executors may not be required to obtain a surety bond if the will waives that requirement.
How do I get a Bond released? The administrator can be released from the surety bond in two ways:
Filing the original refunding bond and release forms from all beneficiaries with the Surrogate Court and stamped copies with the Insurance Company
With the approval of the Superior Court of a formal accounting of the estateSource: http://www.co.middlesex.nj.us/Surrogate/faq.asp
Some of the Duties of the Administrator in 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. 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 Administrator/ 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/ Administrator to Do
Let's review the major duties involved-
In General. The administrator'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. 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. An employer identification number ("EIN") should be obtained for the estate; this number must be included on all returns and other tax documents having to do with the estate. The administrator should also file a written notice with the IRS that he/she is serving as the fiduciary of the estate. This gives the administrator the authority to deal with the IRS on the estate's behalf.
Pay the Debts. The claims of the estate's creditors must be paid. Sometimes a claim must be litigated to determine if it is valid. Any estate administration expenses, such as attorneys', accountants' and appraisers' fees, must also be paid.
Manage the Estate. The administrator takes legal title to the assets in the probate estate. The probate court will sometimes require a public accounting of the estate assets. The assets of the estate must be found and may have to be collected. As part of the asset management function, the administrator may have to liquidate or run a business or manage a securities portfolio. To sell marketable securities or real estate, the administrator will have to obtain stock power, tax waivers, file affidavits, and so on.
Take Care of Tax Matters. The administrator is legally responsible for filing necessary income and estate-tax returns (federal and state) and for paying all death taxes (i.e., estate and inheritance). The administrator can, in some cases be held personally liable for unpaid taxes of the estate. If they don't follow the law. Tax returns that will need to be filed can include the estate's income tax return (both federal and state), the federal estate-tax return, the state death tax return (estate and/or inheritance), and the deceased's final income tax return (federal and state). Taxes usually must be paid before other debts. In many instances, federal estate-tax returns are not needed as the size of the estate will be under the amount for which a federal estate-tax return is required.
Often it is necessary to hire an appraiser to value certain assets of the estate, such as a business, pension, or real estate, since estate taxes are based on the "fair market" value of the assets. After the filing of the returns and payment of taxes, the Internal Revenue Service will generally send some type of estate closing letter accepting the return. Occasionally, the return will be audited.
Distribute the Assets. After all debts and expenses have been paid, the administrator will distribute the assets. Frequently, beneficiaries can receive partial distributions of their inheritance without having to wait for the closing of the estate
Under increasingly complex laws and rulings, particularly with respect to taxes, in larger estates an administrator 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 administrator should have an understanding of the many problems involved and an organization created for settling estates. The administrator should retain an attorney experienced in estate administration.
2. Prosecution Should Not Interfere with Defense Ability to Interview Witnesses. State v Blazas 432 NJ Super. 326 (App. Div. 2013)
The "meaningful opportunity to present a complete defense" guaranteed by the Federal and New Jersey Constitutions is denied when the prosecution substantially interferes with a defendant's ability to secure witness testimony. In this case, the government conduct alleged did not result in the denial of witness testimony but, rather, in the denial of access to the witness for interview by the defense. Because such allegations, if true, would be proof of substantial interference with defendant's constitutionally guaranteed right of access to witnesses, the court held that the trial judge erred in failing to conduct an evidentiary hearing.
"The Constitution guarantees criminal defendants 'a meaningful opportunity to present a complete defense.'" Crane v. Kentucky, 476 U.S. 683, 690, 106 S. Ct. 2142, 2146, 90 L. Ed. 2d 636, 645 (1986)); see alsoState v. Garron, 177 N.J. 147, 168 (2003) ("The Federal and New Jersey Constitutions guarantee criminal defendants 'a meaningful opportunity to present a complete defense.'"), cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204 (2004); State v. Budis, 125 N.J. 519, 531 (1991). This right is safeguarded, in part, by a "constitutionally guaranteed access to evidence." California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct. 2528, 2532, 81 L. Ed. 2d 413, 419 (1984) (quoting United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S. Ct. 3440, 3446, 73 L. Ed. 2d 1193, 1203 (1982)).
It is well established that access to witness testimony falls within this constitutional guarantee. Our Supreme Court held that a "defendant's due process rights are violated when there is substantial government interference with a defense witness'[s] free and unhampered choice to testify[.]" State v. Feaster, 184 N.J. 235, 251 (2005) (internal quotation marks omitted).
3. Police Officer Reading Inaccurate DWI Refusal Warning is not a Defense to Refusal Charge. State v. O'Driscoll 215 NJ 461 (2013)
The police officer's errors in the reading of the standard statement informing defendant of the consequences of refusing to provide a breath sample were not material in light of the statutory purpose to inform motorists and impel compliance. The officer's misstatements could not have reasonably affected defendant's choice to refuse to provide a breath sample, and do not require reversal of defendant's conviction for refusal.
4. New YouTube informational Video of the Week
Administration of Estate