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NJ LAWS EMAIL NEWSLETTER E436
Kenneth Vercammen, Attorney at Law
February 5, 2014
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Dear Ken,
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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.
http://www.co.gloucester.nj.us/depts/s/surrogate/services/admaffidavits.asp
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.
http://www.co.middlesex.nj.us/Surrogate/faq.asp
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
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Wednesday, September 24, 2014
E436 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
