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