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Tuesday, April 17, 2018
E537March 20, 2018 Index 1. Even if the request to search were not lawful, defendant's flight attenuated the seizure from the alleged improper police conduct. 2. Strip search after marijuana arrest not permitted. 3. Community Events
E536 ndex 1. Recent cases: GPS tracking device by police not barred. 2. NJ had jurisdiction for criminal spam attack on NJ business 3. OPRA can also require electronically stored data. 4. Non-running Community events 5. Fun Upcoming Charity Running Races
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E535February 15, 2018 Index 1. Recent cases: Dash cam video in fatal shooting public record. 2. Canine dog sniff search cannot be long delay. 3. Defendant had a constitutional right to possess the machete in his home. 4. Non-running Community events & St. Patrick parades. 5. Fun Upcoming Charity Running Races.
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Monday, April 09, 2018
Winter 2017 Municipal Court Law Review rev 1/10/17
Major cases affecting Municipal Court and criminal cases
1. NJ Supreme Court makes “plain view” car searches easier
State v. Gonzales __ NJ __ (2016)
The Court now excises the inadvertence requirement from the plain-view doctrine. Because it is setting forth a new rule of law, the Court will apply the reformulated plain-view doctrine prospectively. Nevertheless, the Court holds that the trial court’s finding of inadvertence is supported by credible evidence in the record. The Court therefore reverses the judgment of the Appellate Division and reinstates the trial court’s denial of the motion to suppress. A-5-15
2. Protective search on house not permitted where no evidence another person present. State v. Bryant __ NJ __ (2016)
The officers here lacked reasonable and articulable suspicion that another party was present, much less that another party posed a danger to officer safety. The protective sweep was thus insufficient to establish an exception to the warrant requirement, and any evidence found as a result of that sweep—even if it was found in plain view—must be excluded and suppressed as fruit of the poisonous tree. A-2-15
3. Driver with prior school zone DWI sentenced as 2nd Offender State v. Wheatley __ NJ Super. __ (App. Div. 2016)
Distinguishing State v. Reiner, 180 N.J. 307 (2004), the court held that a defendant who was previously convicted of driving while intoxicated (DWI) in a school zone in violation of N.J.S.A. 39:4-50(g) is subject to the increased penalties applicable to second offenders under N.J.S.A. 39:4-50(a)(2) when he was subsequently convicted of a conventional DWI in violation of N.J.S.A. 39:4-50(a). A-5026-14T1
4. Town outside surveillance camera not subject to OPRA but maybe subject to common law.
Gilleran v. Township of Bloomfield __ NJ __ (2016)
Compelling release on demand of security surveillance video would be contrary to the legislative intent motivating OPRA’s exemptions based on security concerns. The Township’s explanation for denying the request for the footage was adequate. Requests for video from surveillance cameras protecting public facilities are better analyzed under the common law right of access. The Court therefore reverses the judgment of the Appellate Division and remands the matter for further proceedings based on the unresolved common law claim. A-15-15
5 Twitter statement admissible in criminal trials. State v Hannah __ NJ Super. __ (App. Div. 2016)
Defendant was charged with hitting the victim in the face with her shoe. At trial, the State introduced a screenshot taken by the victim of a "tweet" allegedly posted by defendant after the incident saying "shoe to ya face." Defendant argues that this Twitter posting was improperly admitted into evidence, citing a Maryland case requiring that such social media postings must be subjected to a greater level of authentication. The Appellate Division rejects that contention, holding that New Jersey's current standards for authentication are adequate to evaluate social media postings. Under those standards, it was not an abuse of discretion to admit the tweet based on the presence of defendant's photo and Twitter handle, its content containing information specific to the parties involved, and its nature as a reply to the victim's communications. A-5741-14T3
6. No obstruction for failure to provide DL for parking ticket. State v Powers __ NJ Super. __ (App. Div. 2016)
Defendant was convicted after a trial in municipal court, and again on appeal to the Law Division, of obstruction based on both physical interference and an "independently unlawful act." N.J.S.A. 2C: 29-1(a). The court remanded for findings that might illuminate the judge's conclusory determination that defendant physically interfered with a state trooper in the issuance of a parking ticket at a highway rest stop.
The court, however, also held that defendant, in these circumstances, could not be convicted of obstruction by means of "an independently unlawful act" that was based solely on N.J.S.A. 39:4-57, which provides that "[drivers of vehicles . . . shall at all times comply with any direction . . . of a member of a police department" when the officer is in the course of "enforcing a provision of this chapter." Defendant was outside his vehicle and, therefore not a driver, and the trooper was not enforcing Chapter 39 because he was only issuing a parking ticket. A-3764-14T2
7. Official misconduct does not apply to EMT State v. Morrison __ NJ __ (2016)
A municipality’s contracting for emergency medical services through a private, non-profit first-aid squad does not convert the EMTs into public servants because they are not exercising authority of a uniquely governmental nature or performing a function exclusive to government in any traditional sense, regardless of whether there are one or more non-profit providers of publicly funded emergency medical services for the municipality. Morrison did not commit the offense of official misconduct because he was not performing a governmental function and therefore was not a public servant. The Court affirms the judgment of the Appellate Division and remands for proceedings on the four remaining counts. A-36
8. Victim Statement to police not admissible at trial State in Interest of A.R. __ NJ Super. __ (App. Div. 2016)
Appellant, a fourteen-year-old juvenile, was found guilty of sexually touching a seven-year old boy on a bus returning from summer camp. The alleged victim was developmentally comparable to a three-year-old. After getting off the bus, he blurted out to his mother's cousin that appellant had touched him during the ride. Eighteen days later, a detective interviewed the younger child on videotape at the county prosecutor's office. The child repeated the accusation, demonstrating it with anatomical dolls. No eyewitnesses on the bus, including the driver and aide, corroborated the incident.
At a pretrial Rule 104 hearing, the court ruled that both of the child's hearsay statements were sufficiently trustworthy to admit under the "tender years" hearsay exception, N.J.R.E. 803(c)(27). The court then queried the younger child at the start of the trial about his ability to discern and tell the truth. The court twice concluded from the child's troublesome responses that he was not competent to testify under the criteria of N.J.R.E. 601. Nevertheless, the court accepted the child's hearsay statements and trial testimony repeating the accusations, based on the so-called "incompetency proviso" in Rule 803(c)(27), which treats children of tender years as available witnesses even if they are not competent to testify.
The court concluded that the younger child's statements during his recorded interview with the detective were "testimonial" under the Confrontation Clause, as construed by the United States Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004), and its progeny. The objective "primary purpose" of the interview was to elicit and preserve statements from an identified child victim of sexual abuse about wrongful acts for potential use as evidence in a future prosecution. The child's testimonial statements to the detective here are distinguishable from the non-testimonial statements that a young child victim made to her teachers at school in Ohio v. Clark, 135 S. Ct. 173 (2015).
Although appellant's counsel attempted to cross-examine the child, that exercise was inadequate to safeguard his confrontation rights, given the child's undisputed incompetency. Hence, the court reversed the admission of the detective's interview and the child's in-court testimony because it violated appellant's constitutional rights. However, as appellant concedes, the child's spontaneous assertion after getting off the bus was not testimonial under the Confrontation Clause and was properly admitted. The court remanded for the trial court to reconsider the proofs in light of the determinations. A-2238-14T3
9. Dismissal of DV can’t be used as bargaining chip in divorce case J.S. v. D.S __ NJ Super. __ (App. Div. 2016)
Defendant appealed a domestic violence final restraining order (FRO), claiming it was void upon entry – despite the parties' settlement of matrimonial issues that included defendant's consent to the FRO – because the judge did not find an act of domestic violence had occurred. A few days before the scheduled date for oral argument in this court, the parties stipulated to a dismissal of the appeal that would allow for the perpetuation of the FRO.
Notwithstanding their agreement, the court exercised its discretion, pursuant to Rule 2:8-2, and determined that the interests of justice required a disposition of the appeal's merits; the court vacated the FRO due to the lack of a finding of domestic violence, reinstated the TRO, and remanded for a final hearing. A-5742-14T2
10. Mandatory Electronic Filing in Criminal cases in eCourts.
The Supreme Court informed that bar that the Court has determined that electronic filing in Criminal matters using eCourts Criminal is mandatory with certain limited exceptions.
All attorneys and law firms seeking to file documents in criminal matters must do so electronically through eCourts, except in the following limited instances: (1) cases not tracked in PROMIS/Gavel, e.g., expungements, gun permit filings, municipal appeals; (2) filings that are not part of the court's official case file, e.g., prosecutor discovery pursuant to Rule 3:13-3(b)(1); (3) filings where a fee is specifically required, e.g., municipal appeals, expungements; and (4) Megan's Law filings.
11. New Criminal Rules effective Jan 1, 2017
No more mandatory cash bail for indictable criminal charges.
Everyone with a Warrant gets to spend at least one night in jail !!! Attorneys need to set up an eCourts login and file Superior Court motions online, or refer cases out.
On Jan. 1, 2017, NJ shifted from a system that relies principally on setting monetary bail as a condition of release to a risk-based system that is more objective, and thus fairer to defendants because it is unrelated to their ability to pay monetary bail. The statute also sets deadlines for the timely filing of an indictment and the disposition of criminal charges for incarcerated defendants.
Source: www.judiciary.state.nj.us/criminal/cjr/index.html
Photo: Eric Morrell & Ken Vercammen were speakers at the Annual Middlesex County Bar Association Municipal Court case update. For information on other MCBA events go to http://www.mcbalaw.com
13. Next programs:
March 2, 2017 Review of recent caselaw for Police. Sponsored by of Retired Police & Fire Middlesex & Monmouth Local 9 meeting NJRPFA 12 noon, followed by monthly meeting of Retired Police & Fire Middlesex & Monmouth Local 9 meeting NJRPFA At South Amboy Ancient Order of Hibernians, 271 2nd St, South Amboy, NJ 08879
March 20, 2017 Municipal Court College seminar
5:30pm-9:00pm
NJ Law Center, New Brunswick
http://tcms.njsba.com/
May 1, 2017 Nuts & Bolts of Elder Law & Estate Administration Annual Seminar for Attorneys and individuals involved in Probate
Nuts and Bolts of Elder Law
5:00 PM- 9:00 PM NJ Law Center
May 16-17 NJSBA Annual Meeting at the Borgata
July 14, 2017 Happy Hour at Bar Anticipation
Photo text Handling Drug, DWI and Serious Cases in Municipal Court
Kenneth Vercammen, Esq., Past Municipal Court Attorney of the Year
Tara Auciello Edison Prosecutor
John Menzel, Esq., Past Chair Municipal Court Section
Norma Murgado, Esq., Chief Prosecutor- Elizabeth & Woodbridge
William Brigiani, Esq., Past President Middlesex County Bar
The 400 page book written by Ken Vercammen and John Menzel is available from NEW JERSEY INSTITUTE FOR CONTINUING LEGAL EDUCATION
NJICLE, A Division of the NJSBA NJ State Bar Association 732-214-8500
Index
1. NJ Supreme Court makes “plain view” car searches easier
State v. Gonzales
2. Protective search on house not permitted where no evidence another person present. State v. Bryant
3. Driver with prior school zone DWI sentenced as 2nd Offender State v. Wheatley
4. Town outside surveillance camera not subject to OPRA but maybe subject to common law.
Gilleran v. Township of Bloomfield
5 Twitter statement admissible in criminal trials. State v Hannah
6. No obstruction for failure to provide DL for parking ticket. State v Powers
7. Official misconduct does not apply to EMT State v. Morrison
8. Victim Statement to police not admissible at trial State in Interest of A.R.
9. Dismissal of DV can’t be used as bargaining chip in divorce case J.S. v. D.S
10. Mandatory Electronic Filing in Criminal cases in eCourts.
11. New Criminal Rules effective Jan 1, 2017
12 Photo: Eric Morrell
13. Next events:
14. Photo text Handling Drug, DWI and Serious Cases in Municipal Court
Major cases affecting Municipal Court and criminal cases
1. NJ Supreme Court makes “plain view” car searches easier
State v. Gonzales __ NJ __ (2016)
The Court now excises the inadvertence requirement from the plain-view doctrine. Because it is setting forth a new rule of law, the Court will apply the reformulated plain-view doctrine prospectively. Nevertheless, the Court holds that the trial court’s finding of inadvertence is supported by credible evidence in the record. The Court therefore reverses the judgment of the Appellate Division and reinstates the trial court’s denial of the motion to suppress. A-5-15
2. Protective search on house not permitted where no evidence another person present. State v. Bryant __ NJ __ (2016)
The officers here lacked reasonable and articulable suspicion that another party was present, much less that another party posed a danger to officer safety. The protective sweep was thus insufficient to establish an exception to the warrant requirement, and any evidence found as a result of that sweep—even if it was found in plain view—must be excluded and suppressed as fruit of the poisonous tree. A-2-15
3. Driver with prior school zone DWI sentenced as 2nd Offender State v. Wheatley __ NJ Super. __ (App. Div. 2016)
Distinguishing State v. Reiner, 180 N.J. 307 (2004), the court held that a defendant who was previously convicted of driving while intoxicated (DWI) in a school zone in violation of N.J.S.A. 39:4-50(g) is subject to the increased penalties applicable to second offenders under N.J.S.A. 39:4-50(a)(2) when he was subsequently convicted of a conventional DWI in violation of N.J.S.A. 39:4-50(a). A-5026-14T1
4. Town outside surveillance camera not subject to OPRA but maybe subject to common law.
Gilleran v. Township of Bloomfield __ NJ __ (2016)
Compelling release on demand of security surveillance video would be contrary to the legislative intent motivating OPRA’s exemptions based on security concerns. The Township’s explanation for denying the request for the footage was adequate. Requests for video from surveillance cameras protecting public facilities are better analyzed under the common law right of access. The Court therefore reverses the judgment of the Appellate Division and remands the matter for further proceedings based on the unresolved common law claim. A-15-15
5 Twitter statement admissible in criminal trials. State v Hannah __ NJ Super. __ (App. Div. 2016)
Defendant was charged with hitting the victim in the face with her shoe. At trial, the State introduced a screenshot taken by the victim of a "tweet" allegedly posted by defendant after the incident saying "shoe to ya face." Defendant argues that this Twitter posting was improperly admitted into evidence, citing a Maryland case requiring that such social media postings must be subjected to a greater level of authentication. The Appellate Division rejects that contention, holding that New Jersey's current standards for authentication are adequate to evaluate social media postings. Under those standards, it was not an abuse of discretion to admit the tweet based on the presence of defendant's photo and Twitter handle, its content containing information specific to the parties involved, and its nature as a reply to the victim's communications. A-5741-14T3
6. No obstruction for failure to provide DL for parking ticket. State v Powers __ NJ Super. __ (App. Div. 2016)
Defendant was convicted after a trial in municipal court, and again on appeal to the Law Division, of obstruction based on both physical interference and an "independently unlawful act." N.J.S.A. 2C: 29-1(a). The court remanded for findings that might illuminate the judge's conclusory determination that defendant physically interfered with a state trooper in the issuance of a parking ticket at a highway rest stop.
The court, however, also held that defendant, in these circumstances, could not be convicted of obstruction by means of "an independently unlawful act" that was based solely on N.J.S.A. 39:4-57, which provides that "[drivers of vehicles . . . shall at all times comply with any direction . . . of a member of a police department" when the officer is in the course of "enforcing a provision of this chapter." Defendant was outside his vehicle and, therefore not a driver, and the trooper was not enforcing Chapter 39 because he was only issuing a parking ticket. A-3764-14T2
7. Official misconduct does not apply to EMT State v. Morrison __ NJ __ (2016)
A municipality’s contracting for emergency medical services through a private, non-profit first-aid squad does not convert the EMTs into public servants because they are not exercising authority of a uniquely governmental nature or performing a function exclusive to government in any traditional sense, regardless of whether there are one or more non-profit providers of publicly funded emergency medical services for the municipality. Morrison did not commit the offense of official misconduct because he was not performing a governmental function and therefore was not a public servant. The Court affirms the judgment of the Appellate Division and remands for proceedings on the four remaining counts. A-36
8. Victim Statement to police not admissible at trial State in Interest of A.R. __ NJ Super. __ (App. Div. 2016)
Appellant, a fourteen-year-old juvenile, was found guilty of sexually touching a seven-year old boy on a bus returning from summer camp. The alleged victim was developmentally comparable to a three-year-old. After getting off the bus, he blurted out to his mother's cousin that appellant had touched him during the ride. Eighteen days later, a detective interviewed the younger child on videotape at the county prosecutor's office. The child repeated the accusation, demonstrating it with anatomical dolls. No eyewitnesses on the bus, including the driver and aide, corroborated the incident.
At a pretrial Rule 104 hearing, the court ruled that both of the child's hearsay statements were sufficiently trustworthy to admit under the "tender years" hearsay exception, N.J.R.E. 803(c)(27). The court then queried the younger child at the start of the trial about his ability to discern and tell the truth. The court twice concluded from the child's troublesome responses that he was not competent to testify under the criteria of N.J.R.E. 601. Nevertheless, the court accepted the child's hearsay statements and trial testimony repeating the accusations, based on the so-called "incompetency proviso" in Rule 803(c)(27), which treats children of tender years as available witnesses even if they are not competent to testify.
The court concluded that the younger child's statements during his recorded interview with the detective were "testimonial" under the Confrontation Clause, as construed by the United States Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004), and its progeny. The objective "primary purpose" of the interview was to elicit and preserve statements from an identified child victim of sexual abuse about wrongful acts for potential use as evidence in a future prosecution. The child's testimonial statements to the detective here are distinguishable from the non-testimonial statements that a young child victim made to her teachers at school in Ohio v. Clark, 135 S. Ct. 173 (2015).
Although appellant's counsel attempted to cross-examine the child, that exercise was inadequate to safeguard his confrontation rights, given the child's undisputed incompetency. Hence, the court reversed the admission of the detective's interview and the child's in-court testimony because it violated appellant's constitutional rights. However, as appellant concedes, the child's spontaneous assertion after getting off the bus was not testimonial under the Confrontation Clause and was properly admitted. The court remanded for the trial court to reconsider the proofs in light of the determinations. A-2238-14T3
9. Dismissal of DV can’t be used as bargaining chip in divorce case J.S. v. D.S __ NJ Super. __ (App. Div. 2016)
Defendant appealed a domestic violence final restraining order (FRO), claiming it was void upon entry – despite the parties' settlement of matrimonial issues that included defendant's consent to the FRO – because the judge did not find an act of domestic violence had occurred. A few days before the scheduled date for oral argument in this court, the parties stipulated to a dismissal of the appeal that would allow for the perpetuation of the FRO.
Notwithstanding their agreement, the court exercised its discretion, pursuant to Rule 2:8-2, and determined that the interests of justice required a disposition of the appeal's merits; the court vacated the FRO due to the lack of a finding of domestic violence, reinstated the TRO, and remanded for a final hearing. A-5742-14T2
10. Mandatory Electronic Filing in Criminal cases in eCourts.
The Supreme Court informed that bar that the Court has determined that electronic filing in Criminal matters using eCourts Criminal is mandatory with certain limited exceptions.
All attorneys and law firms seeking to file documents in criminal matters must do so electronically through eCourts, except in the following limited instances: (1) cases not tracked in PROMIS/Gavel, e.g., expungements, gun permit filings, municipal appeals; (2) filings that are not part of the court's official case file, e.g., prosecutor discovery pursuant to Rule 3:13-3(b)(1); (3) filings where a fee is specifically required, e.g., municipal appeals, expungements; and (4) Megan's Law filings.
11. New Criminal Rules effective Jan 1, 2017
No more mandatory cash bail for indictable criminal charges.
Everyone with a Warrant gets to spend at least one night in jail !!! Attorneys need to set up an eCourts login and file Superior Court motions online, or refer cases out.
On Jan. 1, 2017, NJ shifted from a system that relies principally on setting monetary bail as a condition of release to a risk-based system that is more objective, and thus fairer to defendants because it is unrelated to their ability to pay monetary bail. The statute also sets deadlines for the timely filing of an indictment and the disposition of criminal charges for incarcerated defendants.
Source: www.judiciary.state.nj.us/criminal/cjr/index.html
Photo: Eric Morrell & Ken Vercammen were speakers at the Annual Middlesex County Bar Association Municipal Court case update. For information on other MCBA events go to http://www.mcbalaw.com
13. Next programs:
March 2, 2017 Review of recent caselaw for Police. Sponsored by of Retired Police & Fire Middlesex & Monmouth Local 9 meeting NJRPFA 12 noon, followed by monthly meeting of Retired Police & Fire Middlesex & Monmouth Local 9 meeting NJRPFA At South Amboy Ancient Order of Hibernians, 271 2nd St, South Amboy, NJ 08879
March 20, 2017 Municipal Court College seminar
5:30pm-9:00pm
NJ Law Center, New Brunswick
http://tcms.njsba.com/
May 1, 2017 Nuts & Bolts of Elder Law & Estate Administration Annual Seminar for Attorneys and individuals involved in Probate
Nuts and Bolts of Elder Law
5:00 PM- 9:00 PM NJ Law Center
May 16-17 NJSBA Annual Meeting at the Borgata
July 14, 2017 Happy Hour at Bar Anticipation
Photo text Handling Drug, DWI and Serious Cases in Municipal Court
Kenneth Vercammen, Esq., Past Municipal Court Attorney of the Year
Tara Auciello Edison Prosecutor
John Menzel, Esq., Past Chair Municipal Court Section
Norma Murgado, Esq., Chief Prosecutor- Elizabeth & Woodbridge
William Brigiani, Esq., Past President Middlesex County Bar
The 400 page book written by Ken Vercammen and John Menzel is available from NEW JERSEY INSTITUTE FOR CONTINUING LEGAL EDUCATION
NJICLE, A Division of the NJSBA NJ State Bar Association 732-214-8500
Index
1. NJ Supreme Court makes “plain view” car searches easier
State v. Gonzales
2. Protective search on house not permitted where no evidence another person present. State v. Bryant
3. Driver with prior school zone DWI sentenced as 2nd Offender State v. Wheatley
4. Town outside surveillance camera not subject to OPRA but maybe subject to common law.
Gilleran v. Township of Bloomfield
5 Twitter statement admissible in criminal trials. State v Hannah
6. No obstruction for failure to provide DL for parking ticket. State v Powers
7. Official misconduct does not apply to EMT State v. Morrison
8. Victim Statement to police not admissible at trial State in Interest of A.R.
9. Dismissal of DV can’t be used as bargaining chip in divorce case J.S. v. D.S
10. Mandatory Electronic Filing in Criminal cases in eCourts.
11. New Criminal Rules effective Jan 1, 2017
12 Photo: Eric Morrell
13. Next events:
14. Photo text Handling Drug, DWI and Serious Cases in Municipal Court
1. NJ Estate Tax eliminated effective January 1, 2018 and changes to Federal Taxes. In NJ, there is no longer a NJ Estate tax, although there is still an inheritance tax for money that is not going to spouse, children, grandchildren, etc.
The basic Federal Estate Tax exclusion amount for 2018 is
$5,600,000. For our NJ clients, you can leave to a spouse $100,000,000 [One hundred million to your spouse without tax] This also means you can leave $5,600,000 to children, charity, family etc. without any estate tax with proper tax planning by your attorney.
In 2018, the annual Federal gift tax exclusion is $15,000.
2. New law permits Executor to be replaced if all parties consent
The new law provides for a voluntary discharge process for personal representatives overseeing the administration of estates, whether those personal representatives were appointed by the Surrogate’s Court or the Probate Part of the Superior Court, Chancery Division. One beneficiary must agree to serve as the new Personal Representative of the Estate.
The new law is NJSA 3B: 10-30.1 Voluntary discharge of personal representative for an estate.
3. NJ Inheritance Tax must still usually be paid if assets are going to persons other than spouse or children.
Separate from the Estate Tax, New Jersey imposes an Inheritance Tax on the estates of limited resident and nonresident decedents. P.L. 2016, c. 57 made no changes to the New Jersey Inheritance Tax.
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.
INHERITANCE TAX BENEFICIARY CLASSES
Class A
No Tax
§Parent
§Grandparent
§Spouse
§Child of a decedent (includes legally adopted child)
§Grandchild, great-grandchild, etc. of a decedent
§Stepchild of a decedent
(does not include a step-grandchild or great-step grandchild)
§Mutually acknowledged child
§Civil union partner (after 2/19/2007)
§Domestic partner (after 7/10/2004)
Class C
§Brother or sister of a decedent
§Spouse or surviving spouse of a child of a decedent
§Civil union partner or surviving civil union partner (after 2/19/2007) of a child of a decedent
Class D
§Anyone not included in Classes A, C, or E
Class E
No Tax is due
Including, but not limited to:
§Qualified charities
§Religious institutions
§Educational and medical institutions
§Non-profit benevolent or scientific institutions
§The State of New Jersey or any of its political subdivisions
See exempt organizations Exempt Organizations:
"Class E transferee" means any of the following:
• The State of New Jersey or any political subdivision thereof;
Any educational institution, church, hospital, orphan asylum, public library or Bible and tract society or to, for the use of or in trust for any institution or organization organized and operated exclusively for religious, charitable, benevolent, scientific, literary or education purposes, including any institution instructing the blind in the use of dogs as guides, no part of the net earnings of which inures to the benefit of any private stockholder or other individual or corporation; provided, that the exemption does not extend to transfers of property to such education institutions and organizations of other states, the District of Columbia, territories and foreign countries which do not grant an equal and like exemption of transfers of property for the benefit of such institutions and organizations of this State.
2018 INHERITANCE TAX RATES
Class A- No tax is due
Class C
First $25,000.......................No tax is due
Next $1,075,000................ 11%
Next $300,000..................... 13%
Next $300,000..................... 14%
Over $1,700,000................... 16%
Class D [other people]
First $700,000......................... 15%*
Over $700,000......................... 16%
Class E- charities: No tax is due
4. Set up a testamentary trust in your Will for Protection for a second spouse to protect assets for children and grandchildren
The Credit Shelter Trust (sometimes referred to as a “Bypass Trust” or an “A/B Trust”) was a popular estate planning technique used by married couples with combined assets to avoid the NJ Estate Tax. A Testamentary Trust (sometimes referred to as a Will trust or trust under will) is a trust, which arises upon the death of the testator [person who signed the Will]. A Credit Shelter Trust is a type of Testamentary Trust.
The purpose of the Credit Shelter Trust was 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, Nursing Home & Medicaid issues, plus elective share by a future spouse, 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.
Even though NJ has eliminated the NJ Estate Tax, a Testamentary Trust within the Will is still a useful device to help ensure children and grandchildren with receive money down the road. Otherwise, the surviving spouse can spend all the money in Atlantic City. The surviving spouse could also get remarried and do a new Will leaving all assets to the new spouse. Also, if your spouse gets remarried and their new spouse has to go into a nursing home, your spouse may have to use some of your hard earned money to pay for the new spouse’s expensive nursing home. Many families want to protect at least some of the money from wasteful spending or a new spouse.
In a typical Will Testamentary 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 another trusted family member or friend.
If the Will Testamentary 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 Testamentary Trust. We work with a tax attorney to help our clients. Protect your money if you pass away and your spouse gets re-married or has to go into a nursing home.
Some persons even 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 not something a non-attorney can do on their own. It is also illegal for a non-attorney to provide legal advice or prepare most legal documents.
Beware of the “Elective share” rights of a new spouse. Have a Prenuptial Agreement if entering into a 2nd marriage
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. If there is no Will, the new spouse receives 50% of the estate even if only married three days.
5. Always have proper Self- Proving Wills since witnesses often move or pass away, don’t rely on cheap online forms
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. Never use a cheap form on line. No one tries to do their own electrical work on their home anymore or change their own oil. Have a professional do it right.
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 estate planning 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. Also make sure your Will includes a formal “no bond required” clause so the executor/ personal representative does not have to spend thousands of dollars being bonded.
8. 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). A NJ bank does not have honor a Power of Attorney without the NJ language. Also, if you or your representative move it is a good idea to have a new POA prepared since a bank may give your selected person a hard time if the address on their ID is different than the address on the POA.
9 Federal Health Privacy Law (HIPAA)- Have a new Living Will prepared
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.
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 Federal reg. More information on the HIPAA law at http://www.njlaws.com/hipaa.html
More information on Wills and Probate at http://njwillsprobatelaw.com
To schedule an appointment for Wills and Estate Planning
Contact KENNETH VERCAMMEN & ASSOCIATES, PC ATTORNEY AT LAW 2053 Woodbridge Ave. Edison, NJ 08817(Phone) 732-572-0500
If you or anyone you know needs an updated Will, Power of Attorney or Living Will, please have them fill out our confidential interview from and schedule a consult.
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
The basic Federal Estate Tax exclusion amount for 2018 is
$5,600,000. For our NJ clients, you can leave to a spouse $100,000,000 [One hundred million to your spouse without tax] This also means you can leave $5,600,000 to children, charity, family etc. without any estate tax with proper tax planning by your attorney.
In 2018, the annual Federal gift tax exclusion is $15,000.
2. New law permits Executor to be replaced if all parties consent
The new law provides for a voluntary discharge process for personal representatives overseeing the administration of estates, whether those personal representatives were appointed by the Surrogate’s Court or the Probate Part of the Superior Court, Chancery Division. One beneficiary must agree to serve as the new Personal Representative of the Estate.
The new law is NJSA 3B: 10-30.1 Voluntary discharge of personal representative for an estate.
3. NJ Inheritance Tax must still usually be paid if assets are going to persons other than spouse or children.
Separate from the Estate Tax, New Jersey imposes an Inheritance Tax on the estates of limited resident and nonresident decedents. P.L. 2016, c. 57 made no changes to the New Jersey Inheritance Tax.
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.
INHERITANCE TAX BENEFICIARY CLASSES
Class A
No Tax
§Parent
§Grandparent
§Spouse
§Child of a decedent (includes legally adopted child)
§Grandchild, great-grandchild, etc. of a decedent
§Stepchild of a decedent
(does not include a step-grandchild or great-step grandchild)
§Mutually acknowledged child
§Civil union partner (after 2/19/2007)
§Domestic partner (after 7/10/2004)
Class C
§Brother or sister of a decedent
§Spouse or surviving spouse of a child of a decedent
§Civil union partner or surviving civil union partner (after 2/19/2007) of a child of a decedent
Class D
§Anyone not included in Classes A, C, or E
Class E
No Tax is due
Including, but not limited to:
§Qualified charities
§Religious institutions
§Educational and medical institutions
§Non-profit benevolent or scientific institutions
§The State of New Jersey or any of its political subdivisions
See exempt organizations Exempt Organizations:
"Class E transferee" means any of the following:
• The State of New Jersey or any political subdivision thereof;
Any educational institution, church, hospital, orphan asylum, public library or Bible and tract society or to, for the use of or in trust for any institution or organization organized and operated exclusively for religious, charitable, benevolent, scientific, literary or education purposes, including any institution instructing the blind in the use of dogs as guides, no part of the net earnings of which inures to the benefit of any private stockholder or other individual or corporation; provided, that the exemption does not extend to transfers of property to such education institutions and organizations of other states, the District of Columbia, territories and foreign countries which do not grant an equal and like exemption of transfers of property for the benefit of such institutions and organizations of this State.
2018 INHERITANCE TAX RATES
Class A- No tax is due
Class C
First $25,000.......................No tax is due
Next $1,075,000................ 11%
Next $300,000..................... 13%
Next $300,000..................... 14%
Over $1,700,000................... 16%
Class D [other people]
First $700,000......................... 15%*
Over $700,000......................... 16%
Class E- charities: No tax is due
4. Set up a testamentary trust in your Will for Protection for a second spouse to protect assets for children and grandchildren
The Credit Shelter Trust (sometimes referred to as a “Bypass Trust” or an “A/B Trust”) was a popular estate planning technique used by married couples with combined assets to avoid the NJ Estate Tax. A Testamentary Trust (sometimes referred to as a Will trust or trust under will) is a trust, which arises upon the death of the testator [person who signed the Will]. A Credit Shelter Trust is a type of Testamentary Trust.
The purpose of the Credit Shelter Trust was 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, Nursing Home & Medicaid issues, plus elective share by a future spouse, 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.
Even though NJ has eliminated the NJ Estate Tax, a Testamentary Trust within the Will is still a useful device to help ensure children and grandchildren with receive money down the road. Otherwise, the surviving spouse can spend all the money in Atlantic City. The surviving spouse could also get remarried and do a new Will leaving all assets to the new spouse. Also, if your spouse gets remarried and their new spouse has to go into a nursing home, your spouse may have to use some of your hard earned money to pay for the new spouse’s expensive nursing home. Many families want to protect at least some of the money from wasteful spending or a new spouse.
In a typical Will Testamentary 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 another trusted family member or friend.
If the Will Testamentary 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 Testamentary Trust. We work with a tax attorney to help our clients. Protect your money if you pass away and your spouse gets re-married or has to go into a nursing home.
Some persons even 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 not something a non-attorney can do on their own. It is also illegal for a non-attorney to provide legal advice or prepare most legal documents.
Beware of the “Elective share” rights of a new spouse. Have a Prenuptial Agreement if entering into a 2nd marriage
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. If there is no Will, the new spouse receives 50% of the estate even if only married three days.
5. Always have proper Self- Proving Wills since witnesses often move or pass away, don’t rely on cheap online forms
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. Never use a cheap form on line. No one tries to do their own electrical work on their home anymore or change their own oil. Have a professional do it right.
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 estate planning 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. Also make sure your Will includes a formal “no bond required” clause so the executor/ personal representative does not have to spend thousands of dollars being bonded.
8. 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). A NJ bank does not have honor a Power of Attorney without the NJ language. Also, if you or your representative move it is a good idea to have a new POA prepared since a bank may give your selected person a hard time if the address on their ID is different than the address on the POA.
9 Federal Health Privacy Law (HIPAA)- Have a new Living Will prepared
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.
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 Federal reg. More information on the HIPAA law at http://www.njlaws.com/hipaa.html
More information on Wills and Probate at http://njwillsprobatelaw.com
To schedule an appointment for Wills and Estate Planning
Contact KENNETH VERCAMMEN & ASSOCIATES, PC ATTORNEY AT LAW 2053 Woodbridge Ave. Edison, NJ 08817(Phone) 732-572-0500
If you or anyone you know needs an updated Will, Power of Attorney or Living Will, please have them fill out our confidential interview from and schedule a consult.
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
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