Wednesday, June 05, 2024

E704 VercammenLaw News

1. What Assets Cannot Be Placed in a Revocable Trust?

2 Recent cases Putting tracking device on ex-girlfriend car could be DV Domestic Violence K.E.Z. v. J.H.

3 Police here not permitted to search person of guest

4 Post-Mortem Tax Planning Ideas

5 Happy 1^st birthday Grandson Logan with his guard dogs Daisy & Lexi

6 Amanda Dalton Clark Esq Chair of Criminal Law Section

7 Jersey Shore & Central Jersey Bands and places for Music

1 What Assets Cannot Be Placed in a Revocable Trust?

There are a variety of assets that you cannot or should not place in a Living trust. These include:

Retirement accounts. Accounts such as a 401(k), IRA, 403(b) and certain qualified annuities should not be transferred into your living trust. Doing so would require a withdrawal and likely trigger income tax. In this instance, it is possible to name the trust as the primary or secondary beneficiary of the account, which would ensure the funds transfer to the trust upon your death.

Health savings accounts or medical savings accounts. Since these accounts already allow you to use the money tax-free for allowable medical expenses, they cannot be transferred to a living trust. Like retirement accounts, however, you can name the trust as the primary or secondary beneficiary.

Active financial accounts. It is not advisable to transfer accounts you use to actively pay your monthly bills unless you are the trustee and granted full control of the trust assets. For many people, it is simply easier to keep these accounts out of the trust. Clients are often concerned about keeping a working bank account separate from the trust because of the potential for lengthy probate and the inability to quickly convey these funds to heirs. This is where designating beneficiaries comes in handy. When you opened your checking or savings account, your financial institution or bank may not have asked you to select a beneficiary when you signed the signature card. Review these accounts for a payable-on-death (POD) option that allows you to add primary and secondary beneficiaries.

UGMA/UTMA accounts. Uniform Gifts or Transfers to Minors Accounts, or UTMA accounts, are established to benefit minor children. A trust could potentially be pulled into probate if the trustee were to predecease the minor. Consider instead utilizing a successor custodian on these accounts.

Vehicles. Generally, everyday vehicles like cars, boats, trucks, motorcycles, airplanes or even mules or snowmobiles are not placed in a trust because they often do not go through probate, and unlike collectible vehicles, they are not appreciable assets. Additionally, many states impose a tax when the vehicles are retitled, and some do not allow vehicle owners to name a beneficiary after death.

Source: https://www.kiplinger.com/retirement/estate-planning/604051/what-assets-should-be-included-in-your-trust

2 Recent cases Putting tracking device on ex-girlfriend car could be DV Domestic Violence K.E.Z. v. J.H.

Defendant appealed trial court's entry of a final restraining order against him in favor of his former girlfriend pursuant to the Prevention of Domestic Violence Act. Trial court conducted a one-day trial in which both parties were represented and no evidence was introduced by either party. Defendant stipulated he had previously dated plaintiff and had committed the predicate act of stalking by placing a tracking device on her vehicle. The sole issue for determination was whether plaintiff required the protection of an FRO. Plaintiff testified she broke off her relationship with defendant, who was a police officer, and later found the tracking device on her vehicle. Plaintiff stated that although defendant had promised not to contact her again, she still wanted an FRO because he had lied to her about details surrounding his installation of the tracking device, and he knew where she lived and worked. Defendant admitted to installing the tracking device, which he then monitored from his cell phone. Trial court issued the FRO, noting plaintiff testified credibly that she was in fear based on defendant's actions and his failure to remove the tracking device or take corrective measures. Court noted that placing a tracking device on a vehicle, which can then be surveilled by cell phone, is a criminal violation. Court concluded that absent an FRO defendant might suffer another "lapse in judgment" and track plaintiff again. Defendant appealed.

Court affirmed. Trial court's finding that plaintiff needed an FRO was supported by defendant's admission and trial court's finding that defendant placed a tracking device on plaintiff's car, which allowed him to know where she was at all times just before and after their breakup. That satisfied the elements of stalking, and defendant's apology and promise not to do so again was of no consequence. Trial court's imposition of the FRO was supported by its determination that plaintiff gave credible testimony, and court found no basis to disturb trial court's findings that an FRO was necessary for plaintiff's protection. Court thus affirmed. A-3172-21 Unreported Source Daily Briefing 2023-08-08

3 Police here not permitted to search person of guest State v. Nolan

Defendant appealed trial court's denial of his motion to suppress narcotics evidence found on his person by police while he was a guest in another person's residence. Township police responded to an apartment resident's call for assistance. Officers had been in the apartment for approximately thirty minutes when the bathroom door opened and an officer saw defendant inside. Defendant, who was known to law enforcement as a drug user, said he had been hiding from the officers in the bathroom and denied he lived in the apartment. Defendant explained he had been placing his cigarettes in his pocket, and he then displayed a pack of cigarettes. An officer concluded defendant had additional material in his pocket. In response to an officer's demand, and while strenuously objecting, defendant removed from his pocket and displayed a wax fold. Defendant was arrested. An ensuing search of defendant's person revealed drug paraphernalia and a baggie believed to contain methamphetamine. Defendant moved to suppress the items found during the search. Upon hearing, trial court denied the motion. Defendant appealed. Court reversed. Court agreed with trial court that the officers were lawfully present in the apartment and that they had reasonable and articulable suspicion to justify detaining defendant while they posed questions to him.

The officers did not have probable cause to make a custodial arrest, however, when defendant was directed to empty his pockets, which in turn meant the officers had no probable cause to initiate a search incident to a lawful arrest. The plain view doctrine did not support the search because the officer admitted that it was not immediately apparent that the paper object in defendant's pocket was a wax fold. Absent proof of probable cause to arrest defendant and conduct a search at the moment defendant was first directed to reveal the contents of his pocket, the formal arrest and ensuing search were a fruit of the unlawful command that defendant reveal what he had in his pocket. Court therefore reversed and remanded for further proceedings. A-2107-21 Unreported Source Daily Briefing 2023-08-09

4 Post-Mortem Tax Planning Ideas from the Begley Law Group

After an individual dies, the estate and trust administration process can and should include more than just the basic steps of marshalling assets, paying debts, and distributing the remaining funds. Along with making necessary tax filings, there are often cost-effective and highly advantageous strategies that can be employed to reduce the tax burden on the estate or trust, as well as to the ultimate beneficiaries.

1. An estate and a grantor trust (after death of the grantor) are their own tax-filing entities. For each year these entities remain active they are required to file income tax returns. The federal return is known as Form 1041, with similar state forms as well. When the estate or trust is only opened for a short period of time- less than a year, which is typical- the fiduciary only needs to fine one income tax return. The return is both the initial and final return. Wrapping up the administration within a year, and making all distributions, enables the fiduciary to pass through all income to the beneficiaries to the K-1. The estate or trust pays no tax. No subsequent returns are needed, saving the estate or trust money.

2. Capital gains are somewhat limited on 1041s as most assets held by the estate or trust received a stepped-up basis as of date of death. However, many brokers and investment managers fail to step up the basis on their accounts unless told to do so. If the assets are sold quickly there is limited time for them to accrue value. On the other hand, if investments are retained during the administration, those assets (typically securities) may grow significantly. If the assets are then sold, there are capital gains reportable to the estate or trust. If the bases were never stepped up the gains may also be artificially inflated. All capital assets held by the estate or grantor trust are treated as long-term capital gains. Making sure the basis of all appreciating assets is stepped-up to the date-of-death value ensures the best possible income tax outcome for the entity and its beneficiaries.

3. While S corporation (S-corp) status can have many benefits for small business owners, there can be significant pitfalls for the unwary after a shareholder dies. If all shareholders of the S-corp are not properly qualified owners, the corporation loses the tax-advantaged status; the S-corp can be involuntarily terminated. While an Estate can be a qualified shareholder, IRS rules do not condone keeping estates open for an unlimited period of time. Similarly, certain trusts, such as testamentary trusts, may be qualified S-corp shareholders, but only for a 2-year grace period. This can leave estate administrators and trustees in a difficult situation, having to determine how to dispose of the stock during this 2-year window. One option that should not be overlooked is converting a trust into a qualifying S-corp trust, such as a Qualified Subchapter S Trust (QSST) or Electing Small Business Trust (ESBT), by modifying the dispositive terms of the trust. Similarly, fiduciaries must ensure that the proper S-corp election as to the new shareholder is timely made.

4. One step many fiduciaries fail to take is filing an IRS Form 56. Filing Form 56 creates for the IRS a legal record of the fiduciary appointment, helping to establish the fiduciary's authority to act on behalf of the or entity. Critically, Form 56 denotes for the IRS where to send all tax notices. In many cases where a decedent has died, the mail forwarding (through USPS) is often not a seamless process. Without a Form 56 on record, the IRS will send all tax notices to the decedent’s last known address; this is unlikely to be the fiduciary’s address. Form 56 is protective of the fiduciary in that they can be assured all tax notices will make it to their attention. Absent this simple step, the fiduciary may become liable for the decedent’s tax burden.

5. When individuals are named beneficiaries of retirement accounts, like IRAs, they have various options on how they would like to withdraw the money. Many people do not carefully consider these options. Individual withdraw all inherited funds withing 10 years. However, Eligible Designated Beneficiaries (EDBs) may withdraw from the retirement account over the anticipated lifetime, stretching the investment and deferring the taxation. A surviving spouse, a minor child of the decedent, a disabled or chronically ill individual, or an individual who is less than 10 years younger than the decedent can qualify as an EDB. Unintentionally failing to qualify as an EDB for this select group of beneficiaries can have disastrous tax consequences. Source: Begley Law Group by Adam Cohen, Esquire

begleylawgroup.com

Tom Begley Jr., Esq., a distinguished author and speaker in New Jersey. Tom’s website has a wealth of information and forms on Medicaid, Special needs planning, and guardianship. Ken Vercammen has been fortunate to serve as a speaker with Mr. Begley for the NJ State Bar Association numerous times.

Begley Law Group, P.C. has served the New Jersey and Philadelphia area for over 90 years. Our attorneys have expertise in the areas of Personal Injury Settlement Consulting, Special Needs Planning, Long-Term Care Planning, Estate Planning, Estate & Trust Administration, and Guardianship.

5.Happy 1^st birthday Grandson Logan with his guard dogs Daisy & Lexi

also with Great Grandpa Al V and family

6 Amanda Dalton Clark Esq Chair of Criminal Law Section & Ken, past Trustee, at NJSBA Annual Meeting below:

7 Jersey Shore & Central Jersey Bands and places for Music

Dead Jersey Bands & Schedule

http://gratefuldeadtributebands.com/showBandData.php?state=NJ

American Beauty Band

https://www.americanbeautyband.net/

Cosmic Jerry Band

https://cosmicjerryband.com/shows

This Old Engine | Grateful

https://www.facebook.com/ThisOldEngine/

WAYNARD MUSIC / RAINBOW FULL of SOUND OFFICIAL WEBSIT

https://waynardmusic.com/on-tour

TOUR | Englishtown Project

https://www.englishtownproject.com/tour

Dead reckoning

https://njdeadreckoning.wixsite.com/dead/schedule

Dead On Live

https://www.deadonlive.com/tour.php

Deadbank

https://www.facebook.com/DeadBank

lovelightband

https://lovelightband.com/calendar/

Dark Star Orchestra

https://www.darkstarorchestra.net/tour/#fall-2023

Splintered Sunlight

https://www.splinteredsunlight.com/dates

Eddie Testa Band

https://eddietestaband.com/events/

Pat Roddy

https://patroddy.com/shows/page/2/?X_GUMM_REQUESTED_WITH=XMLHttpRequest

BSTREETBAND A

http://www.bstreetband.com/calendar/

E Street Shuffle

https://theestreetshuffle.com/events/month/

Asbury Fever

https://www.asburyfever.com/

SAINTS IN THE CITY

https://saintsinthecity.com

Glimmer Twins

https://theglimmertwins.com/upcomingshows/

WELL ALRIGHT – Shows

https://wellalrightrollingstones.com/shows

Guns 4 Hire Trio | Calendar

https://guns4hiretrio.com/?page_id=15

Pt Pleasant Jenkinson’s Inlet

https://jenkinsons.com/calendar/

Other bands

https://www.facebook.com/p/Moroccan-Sheepherders-100063774751835/

https://www.facebook.com/thedeadcowboys/events/?id=100063035179366&sk=events

REAL DIAMOND Tribute to Neil Diamond

https://realdiamondband.com/tour

https://www.co.burlington.nj.us/DocumentCenter/View/19158/Poster-Amph2024

Wonder Bar

https://wonderbarasburypark.com/yappy-hour/

https://thejerseyfour.com/upcoming-shows/

Tequila Rose Band

https://www.tequilaroseband.com/

Southern steel Schedule

https://www.southernsteelband.com/southern_steel_003.htm

Aug 20 Aberdeen

Pure Petty Pure Petty

https://purepettyband.com/shows

Kindred Spirit

https://kindredspiritrocks.com/upcoming-shows

Gypsy Fleetwood

https://www.gypsynicks.com/index.php/upcoming-shows/

Bar A

https://bar-a.com/entertainment-calendar/

Headliner Oasis

https://www.headlineroasis.com/band-schedule

https://www.saltysbeachbar.com/pages/event-calendar

https://sandbox.seastreak.com

Tramps Like Us | August 2

https://www.blugrottorestaurant.com

https://www.facebook.com/RedRockTapAndGrill/

https://www.jamiansfood.com/music

Lexi dog continues to greet clients in office

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Thursday, May 30, 2024

E703 VercammenLaw News

1 Refusal to take breath test affirmed where defendant offered no valid reason why he could not provide a proper breath sample

2 New Rules for Pre-Court Installation of Interlock Device of persons pending a DWI

3 Videos: Can I disinherit my spouse, domestic partner, children or family under my Will? Yes

4. Lexi dog spinning on Youtube

5 Municipal Court Section officers and trustees

6. Photo Brent Bramnick Esq & Ken Vercammen Esq

7 More Running Races for Charity

1 Recent cases Refusal to take breath test affirmed where defendant offered no valid reason why he could not provide a proper breath sample

State v. Simmons

Defendant appealed his convictions for driving while intoxicated and refusal to submit to a chemical breath test. Defendant failed a field sobriety test and was arrested for suspicion of DWI. At a nearby law enforcement facility, defendant again failed sobriety tests. Defendant was provided his Miranda rights, after which he admitted consuming alcohol and agreed to provide a breath sample. When the trooper attempted to obtain a breath sample, however, defendant failed to breathe out sufficiently for the equipment to obtain a reading. The trooper believed defendant was not trying to provide a proper sample. Defendant was tried in municipal court for DWI and refusal. Defendant called an expert witness in breath analyzer equipment and field sobriety testing, and also a lay witness. The expert challenged the reliability of the trooper's field sobriety tests and disputed the trooper's assertion that he continuously monitored defendant for twenty minutes prior to the breathalyzer test because the record showed the trooper performed a "control solution change" on the equipment during that period. Municipal court found defendant guilty on both charges. Municipal court deemed the trooper credible and concluded direct and circumstantial evidence demonstrated defendant was under the influence of alcohol and was "operating" a vehicle for purposes of the DWI statute.

Municipal court noted defendant was the sole occupant of his vehicle and defendant admitted he had consumed alcohol. Municipal court also concluded the trooper's rebuttal testimony explaining the circumstances of the equipment solution change negated defendant's claim, and defendant offered no valid reason why he could not provide a proper breath sample. Defendant appealed. On de novo review, trial court found defendant guilty. Defendant appealed. Court affirmed, emphasizing the deferential nature of its review of trial court's determination. Court affirmed substantially for the reasons set out by trial court in its well-reasoned decision. Court deemed trial court's factual and credibility findings supported by sufficient credible evidence and noted that municipal court's credibility findings were not at issue in defendant's appeal. A-3438-21 Unreported Source Daily Briefing 2023-08-01

2 New Rules for Pre-Court Installation of Interlock Device of persons pending a DWI

Drivers required to make multiple trips to MVC when they install interlock pre-court

Interlock of New Jersey Inc advises that MVC will require any offender who installs pre-court to return to Motor Vehicle a second time in order to start their sentence.

MVC sees the new law as not giving credit to offenders for interlock time served prior to conviction. They contend that the sentence lengths post-conviction will remain the same. As a matter of process, they will need a start time for the interlock requirement and will need the offender to return to MVC with a second certificate from the interlock provider. Once they return to MVC with this certificate, the sentence of the judge will begin from that date.

Here are the steps for the offender:

Pre-Conviction

1. Bring ticket to interlock provider and have interlock installed.

2. Take pre-conviction installation certificate, work order and invoice, provided by interlock company to MVC and apply for restricted use license.

3. MVC will give paper document if approved and send actual license in the mail. The license is the proof of pre-court installation to be used at court.

Post-Conviction

1. Must get Order & Certification from the court.

2. Contact interlock provider and coordinate exchanging the Order & Certification for a post-conviction installation certificate to rectify that interlock is still installed.

3. Return to MVC and present the recertification. MVC will notate drivers record indicating that interlock is installed. The date of this event will mark the beginning of their interlock sentence.

Without this return trip, their interlock time will not start - so if you have any clients who have installed pre-court and have been sentenced, let them know to reach out to their interlock provider for recertification and to make the trip to MVC in order to start their sentence.

The above advice came from Jason Gooberman, President of Interlock of New Jersey.More details at IDNJ.com

3 Recent Videos: Can I disinherit my spouse, domestic partner, children or family under my Will? Yes

https://youtu.be/LLH9xZfljmk

Can I disinherit my spouse, domestic partner, children or family under my Will? The answer is yes; however, a surviving spouse or domestic partner may be able to file for an elective share against the Estate and if good cause is shown a disinherited child may also seek to recover a share of the Estate.

What is Probate?

https://youtu.be/bNbdhtmStds

What is a Living Will?

https://youtu.be/2Sn6OK-DsR0

What is a Power of Attorney?

https://youtu.be/FZKWhc5zuOc

4. Lexi dogtricks & spinning on Youtube

https://www.youtube.com/shorts/KXZmeQMBmo4

5 Photo Municipal Court Section officers and trustees

Attorneys: Join the MUNICIPAL COURT PRACTICE SECTION of the NJ STATE BAR ASSOCIATION

The Section sponsors seminars on handling cases in Municipal Court, social events and a helpful list serve. Only $35.00 per year.

As a Section member you will have the opportunity to:

• Join connected communities for networking and information.

• Keep abreast of the latest developments in your practice area through seminars, workshops, newsletters and social and networking events including

• Receive valuable discounts for related ICLE programs.

• Meet prestigious Prosecutors, Judges and defense Attorneys.

• Participate in the legislative process by reviewing pending legislation and assisting the leadership in recommending new laws or changing existing laws and Court Rules.

The Municipal Court Practice Section works to enhance the professionalism of the Municipal Courts through identification and recommendations for resolution of issues in Municipal Courts, and sponsors the Municipal Court Practice Award. https://tcms.njsba.com/personifyebusiness/Portals/0/NJSBA-PDF/miscellaneous/2017%20Section%20Application.pdf

Attorneys and Professionals invited to August 2 Summer Happy Hour at Headliner Club in Neptune overlooking the Shark River. RSVP please email VercammenLaw@Njlaws.com

Free Office Space for New or Transitional Attorney and & Mentor program- Edison, NJ Kenneth Vercammen has a space sharing opportunity for new lawyer or recent Transitional attorney to get experience, learn NJ Law office procedures and work on Municipal court cases. This is a mentoring experience where you can learn NJ Law Office Procedure. If interested, email a resume and cover letter. KENNETH VERCAMMEN, Esq. 2053 Woodbridge Ave. Edison, NJ 08817 (Phone) 732-572-0500https://www.njlaws.com/office_space.html

6. Photo Brent Bramnick Esq & Ken Vercammen Esq 2024 NJAJ Boardwalk seminar in Atlantic City.

7 More Running Races for Charity

Ken is running 65 races in 2024 to celebrate 65^th birthday.

6/1/24 Avon 8:30

https://runsignup.com/avon5k

then

6/1 RVRR Training Run

https://www.rvrr.org/events/training-run

6/2/24

ELLIOTT DENMAN NJ INTERNATIONAL TRACK & FIELD MEET

Event Date: Sunday, June 2, 2024 Monmouth Univ

Community 1 Mile Stroll Open To All 4:55 PM

https://www.shoreac.org/schedule-of-events.html#/

6/8/24

Sea Isle City, 5k Peyton's Promise 5K Run for CDH Research 10:15am

https://runsignup.com/Race/NJ/SeaIsleCity/PeytonsPromise5KRunforCDHResearch?aflt_token=vkmwDmweQ4iCYn8otSOOnKQ3vCO8buOw

June 14, 2024 Cleveland Towpath Twilight 5K 7:10pm

Sokolowski's Overlook

1201 University Rd, Cleveland, OH 44113

https://www.canalwaypartners.com/events/2024/06/14/towpath-twilight

June 22, 2024 Terry Bolan Allenhurst 5K

Sat 8:30

https://runsignup.com/Race/NJ/Allenhurst/TerryBolanAllenhurst5K

RVRR Summer series Tuesday Nights: June 25th • July 9th • July 23rd Tuesday night Raritan Valley Road Runners RVRR 5k summer series Highland Park Donaldson Park 7pm https://www.rvrr.org/races/summer-series

June 29, 2024 Red, White & Blue 5K 8am Sat

Clark, NJ 07066 US

https://runsignup.com/Race/Events/NJ/Clark/OakRidgeParkRedWhiteBlue5K

Jun 29 Secret Rumson 10 Mile, 10 Bar run/bike 10:17

Freehold FARC summer 5k Wednesday night June 26 • July 10 • July 17 • July 24 • July 31 Monmouth Battlefield Monmouth Battlefield Park, Manalapan, NJ 6:45 PM

July 4 Hazelton 5k 8:30 AM

http://neparunner.com/calen/calen07.html

July 6 PECKVILLE PA SAT 9:00 AM PECKVILLE, PA

http://neparunner.com/calen/calen07.html

July 13 Long Branch Run>Swim>Run Long Branch Run>Swim>Run 7:15am Sat

https://www.trisignup.com/Race/NJ/LongBranch/LongBranchRunSwimRun

Jul 13, 2024 7:30AM Sea Bright Andy Rooney Ocean Mile Swim 7:30AM Saturday

https://raceforum.com/sbswim

July 13 Belmar Bar Hash run Crawl 10:17am

Belmar Train station DMW / Cumby

7/17 Woodbridge Pizza 4 miler 7pm Wednesday Wakefern Shoprite supports

https://runsignup.com/Race/NJ/Sewaren/DowntownWoodbridge4MilePizzaExtravaganza