In this issue:
1. New Expungement Law permits petitions for Expungement of arrests in
shorter time periods.
2. 2016 update Wills and Estate Planning Seminar materials, By Kenneth
Vercammen
1. New Expungement Law permits petitions for Expungement of arrests
in shorter time periods.
This is an excellent law to help non-violent offenders.
This new law establishes new expungement procedures for records and
information pertaining to crimes and offenses, including procedures for
persons who are, or previously have been, successfully discharged from the
State's special probation drug court program. It also provides shorter waiting
periods before certain records and information become expungeable.
You can now get expungements for both the crime and the disorderly
persons convictions.
The new law takes effect until April 18, 2016.
The time period for expunging a Municipal Court criminal charge may be
reduced to 3 years if you can show exception circumstances. Otherwise it
stays 5 years.
Regarding a person with a criminal conviction, that person would be
permitted to make an application with an expungement petition to the
Superior Court in the county in which the criminal conviction was adjudged.
That application could include additional, separate petitions seeking to
expunge no more than two other convictions for disorderly persons or petty
disorderly persons offenses. The application could only be filed after the
expiration of five years from the date of the person's most recent conviction,
payment of fine, satisfactory completion of probation or parole, or release
from incarceration, for the crime or for any disorderly persons or petty
disorderly persons offense, whichever is later (the waiting period under
current law for a criminal conviction expungement is ordinarily 10 years).
Alternatively, the court could grant an expungement on the application if less
than five years has expired from the payment of any fine but the five-year
waiting period is otherwise satisfied, and the court finds that the person
substantially complied with any payment plan for that fine or could not do so
due to compelling circumstances.
Regarding a person with a conviction for a disorderly persons or petty
disorderly persons offense, but no criminal conviction, that person would be
permitted to make an application with an expungement petition to the
Superior Court concerning that offense following a procedure similar to that
used for criminal convictions. The application, like an application
concerning a criminal conviction, could include additional, separate petitions
seeking to expunge no more than two other convictions for disorderly
persons or petty disorderly persons offenses. The application could only be
filed after the expiration of three years from the date of the person's most
recent conviction, payment of fine, satisfactory completion of probation or
parole, or release from incarceration for any disorderly persons or petty
disorderly persons offense, whichever is later (the waiting period on
convictions for such offenses under current law is five years). Alternatively,
the court could grant an expungement on the application if less than three
years has expired from the payment of any fine but the three-year waiting
period is otherwise satisfied, and the court finds that the person substantially
complied with any payment plan for that fine or could not do so due to
compelling circumstances.
Regarding a person with an arrest or charge that did not result in a
conviction or finding of guilt, whether the proceedings were dismissed, or
the person acquitted or discharged, upon a person presenting an application
for expungement:
(1) if the proceedings took place in Superior Court, the court, at the time
of dismissal, acquittal, or discharge, would order the expungement of all
records and information relating to the arrest or charge; or
(2) if the proceedings took place in municipal court, the municipal court
would provide the person with appropriate documentation to transmit to the
Superior Court to request an expungement, and the Superior Court, upon
receipt of the documentation with an expungement request would take action
to order the expungement of all records and information relating to the arrest
or charge. A person seeking such an expungement of municipal court
matters would not be charged an application fee for taking such action.
An expungement related to a dismissal, acquittal, or discharge without a
conviction or finding of guilt would not be available whenever the dismissal,
acquittal, or discharge resulted from a plea bargaining agreement involving
the conviction of other charges. However, this bar on such expungements
would no longer apply once the conviction connected to the plea bargain was
itself expunged.
If the person did not apply for an expungement related to a dismissal,
acquittal, or discharge at the time such action occurred, the person could, at
any time following the disposition of proceedings, present to the Superior
Court in the county in which the disposition occurred an application with a
duly verified petition, containing relevant details concerning the applicant
and the arrest or charge for which the expungement is sought. The person,
pursuing this "after the fact" expungement application, would also not be
charged an application fee.
A copy of any Superior Court order of expungement related to a
dismissal, acquittal, or discharge would be presented to the appropriate court
and the prosecutor. The prosecutor would then be responsible for promptly
distributing copies of the expungement order to appropriate agencies with
custody and control of the records specified in the order so that they may be
properly expunged.
Regarding a person who is, or was prior to the effective date of the law,
successfully discharged from the State's special probation drug court
program, the law would permit the Superior Court that had sentenced the
person to the program to expunge all records and information relating to
prior arrests, detentions, convictions, and proceedings for any offense
enumerated in the Criminal Code, Title 2C of the New Jersey Statutes,
existing at the time of discharge from the program. However, the person
would not be eligible for such an expungement action if the person's records
include a conviction for any offense barred from expungement pursuant to
N.J.S.2C:52-2.
For a person who is successfully discharged on or after the effective date
of the law, the person would only be eligible to have all prior matters
expunged if the person was not convicted of any crime, disorderly persons
offense, or petty disorderly persons offense during the term of special
probation. For a person who was successfully discharged prior to the
effective date of the law, the person would only be eligible to have all
matters expunged that existed at the time of discharge from the program if
the person has not been convicted of any crime or offense since the person's
date of discharge.
The Superior Court would grant the person successfully discharged from
the special probation drug court program the relief of expungement, unless it
finds that the need for the availability of the records and information
outweighs the desirability of having the person freed from any disabilities
associated with their availability. The person would not be charged any fee
for such an expungement action.
Lastly, regarding the continued availability of any expunged records and
information, the law updates the statutory list of parties within the criminal
justice system that may still view such records and information. Along with
courts, county prosecutors, the Probation Division of the Superior Court, and
the Attorney General, the Pretrial Services Program making pretrial release
recommendations on certain persons undergoing the release determination
process set forth in sections 1 through 11 of P.L.2014, c.31 (C.2A:162-15 et
seq.) would also be able to examine expunged records and information.
As amended and reported, this law is identical to Assembly Law Nos.
206, 471, 1663, 2879, 3060, and 3108 (ACS/2R), as also amended and
reported by the committee. SENATE, No. 2663
More info on hiring an attorney for an expungement
at http://www.njlaws.com/expungement.html
2. 2016 update Wills and Estate Planning Seminar materials
By Kenneth Vercammen
1. Federal Estate Tax exemption increased to $5,450,000 in 2016 so no
Federal Estate Tax. However, New Jersey taxes estates over $675,000
2. Gifts permitted without Federal Estate & Gift tax remains at $14,000 per
person.
3. We recommend Self- Proving Wills since witnesses to Will often move or
pass away
4. Non-formal writings could be Wills under the 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
10 Organ donor facts
1. Federal Estate Tax exemption increased to $5,430,000 in 2015 so no
Federal Estate Tax. However, New Jersey taxes estates over $675,000.
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 $5,340,000 was 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 nonattorney
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 remained at $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 "selfproving"
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 2nd 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 2nd 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 Courts affirmed a Will could be voided 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.
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, 433 N.J. Super. 258, (App.
Div. 2013) 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.
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 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. Don't use 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 coowned
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)- Have a new Living Will prepared
A 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. After you sign the Living Will in your attorney's office,
provide a copy to your doctor and family.
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
9. Competency required to sign a Will or Power of Attorney
Attorneys 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. A 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.
10. Organ Donor Facts
Our Living Wills have been revised to include an Organ donor
selection. Please also sign an organ donor card and register to be an organ
donor, even eyes, with https://www.njsharingnetwork.org. Ken V signed an
organ donor card and also is a volunteer in a medical study using donated
knee cartilage to fix knee damage from 40 years of competitive running and
triathlon, Tae Kwon Do and other sports.
Who can be a donor? People of all ages and medical histories should
consider themselves potential donors. Your medical condition at the time of
death will determine what organs and tissue can be donated.
Does my religion support organ and tissue donation? Every major
religion in the United States supports organ and tissue donation as one of the
highest expressions of compassion and generosity.
Is there a cost to be an organ, eye and tissue donor? There is no cost
to the donor's family or estate for donation. The donor family pays only for
medical expenses before death and costs associated with funeral
arrangements.
Does my social and/or financial status play any part in whether or
not I will receive an organ if I ever need one? No. When you are on the
transplant waiting list for a donor organ, what really counts is the severity of
your illness, body size, tissue type, blood type and other important medical
information.
Why should I register to be an organ and tissue donor? Organ andtissue transplants offer patients a new chance at healthy, productive, and
normal lives and return them to their families, friends and communities. To
learn more or to register to become an organ and tissue donor,
visit www.NJSharingNetwork.org. Also contact your attorney to have a
Living Will/ Advance Directive prepared.
http://www.njlaws.com/EstatePlanning.htm
NJ Estate NJ Estate Tax Due
$700,000 $9,250
750,000 20,399
800,000 22,799
850,000 25,199
900,000 27,600
950,000 30,400
1,000,000 33,200
1,050,000 36,000
1,100,000 38,800
1,150,000 42,000
1,200,000 45,200
1,250,000 48,400
1,300,000 51,600
1,350,000 54,800
1,400,000 58,000
1,450,000 61,200
1,500,000 64,400
1,550,000 67,600
1,600,000 70,800
1,650,000 74,400
1,700,000 78,000
1,750,000 81,600
1,800,000 85,200
1,850,000 88,800
1,900,000 92,400
1,950,000 96,000
2,000,000 99,600
The Federal Estate Tax applicable exclusion amount is
$1,500,000 (2004-2005),
$2,000,000 (2006-2008),
$3,500,000 (2009),
$5,000,000 (2010-2011),
$5,250,000 (2013), $5,340,000 (2014),
$5,430,000 (2015),
and $5,450,000 (2016)
Beginning January 1, 2011, estates of decedents survived by a spouse may
elect to pass any of the decedent's unused exclusion to the surviving spouse.
This election is made on a timely filed estate tax return for the decedent with
a surviving spouse. Note that simplified valuation provisions apply for those
estates without a filing requirement absent the portability election. See the
Instructions to Form 706 for additional information.
Exclusions
* The annual exclusion for gifts is
* $11,000 (2004-2005),
* $12,000 (2006-2008),
* $13,000 ( 2009-2012)
* and $14,000 (2013-2016).
The applicable exclusion amount for gifts is
$1,000,000 (2010),
$5,000,000 (2011),
$5,120,000 (2012),
$5,250,000 (2013),
$5,340,000 (2014),
$5,430,000 (2015),
and $5,450,000 (2016).
More information on Wills and Probate at
http://njwillsprobatelaw.com and
www.CentralJerseyElderLaw.com
Remember to order your Super Bowl sandwiches from Craig's Deli, II, 2045
Woodbridge Avenue, Edison, NJ. Phone: 732-287-9299
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Editorial Assistance Provided by Juhi Duggirala. Ms. Duggirala is
participating in Ken Vercammen's Fall Internship Program and
currently attends Kean University.
Editor's Note and Disclaimer:
All materials Copyright 2015. You may pass along the information
on the NJ Laws Newsletter and website, provided the name and
address of the Law Office is included.
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
