Contested Probate

Contested Probate

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Kenneth Vercammen & Associates A Law Office with Experienced Attorneys for Your New Jersey Legal Needs 2053 Woodbridge Ave. Edison NJ 08817 732-572-0500 1-800-655-2977 Personal Injury and Criminal on Weekends 732-261-4005

Princeton Area 68 South Main St. Cranbury, NJ 08512

By Appointment Only Toll Free 800-655-2977

Contested Probate Do you think youre entitled to money or might be entitled to money from an estate or trust? Do you believe that someone is unfairly claiming money or property that is rightfully yours? Has The Executor of Adminsitration of The Estate not done their job? If so, and you are a prospective plaintiff or defendant, then you may need an attorney to protect your rights.

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Executor Duties and Responsibilities At some point in time, you may be asked to serve as the executor of the estate of a relative or friend, or you may ask someone to serve as your executor. An executors job comes with many legal obligations. Under certain circumstances, an executor can even be held personally liable for unpaid estate taxes. Lets review the major duties involved, which weve set out below.

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In General, the executors job is to

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1. Administer the estate--i.e., collect and manage assets, file tax returns and pay taxes and debts--and 2. Distribute any assets or make any distributions of bequests, whether personal or charitable in nature, as the deceased directed (under the provisions of the will).

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Lets take a look at some of the specific steps involved and what these responsibilities can mean. Chronological

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Contested Probate

order of the various duties may vary.

Step 1: Probate. The executor must "probate" the will.

Probate is a process by which a will is admitted. This means that the will is given legal effect by the court. The courts decision that the will was validly executed under state law gives the executor the power to perform his or her duties under the provisions of the will.

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above Submit

Clear

Kenneth Vercammen was the Step 2: Manage the Estate. The executor takes legal title Middlesex County Bar Municipal to the assets in the probate estate. The probate court will Court Attorney of the Year 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 executor may have to liquidate or run a business or manage a securities portfolio. To sell marketable securities or real estate, the executor will have to obtain stock power, tax waivers, file affidavits, and so on.

Step 3: Take Care of Tax Matters. The executor 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 executor can, in some cases be held personally liable for unpaid taxes of the estate. Tax returns that will need to be filed can include the estates income tax return (both federal and state), the federal estate-tax return, the state death tax return (estate and/or inheritance), and the deceaseds 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.

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 executor should also file a written notice with the IRS that he/she is serving as the fiduciary of the estate. This gives the executor the authority to deal with the IRS on the estates behalf.

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 http://www.njlaws.com/contested_probate.html?id=173&a=

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generally send some type of estate closing letter accepting the return. Occasionally, the return will be audited.

Step 4: Pay the Debts. The claims of the estates 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.

Step 5: Distribute the Assets. After all debts and expenses have been paid, the distribute the assets with extra attention and meticulous bookkeeping by the executor.

Frequently, beneficiaries can receive partial distributions of their inheritance without having to wait for the closing of the estate.

WHO SHOULD SERVE AS EXECUTOR? The executors legally imposed fiduciary duty is to act in all ways in the best interests of the estate and its beneficiaries. The duties of an executor can be difficult and challenging and should not be taken lightly.

We believe an executor needs not only the skills, training, and experience necessary to do the project--casual or part-time attention is not likely to achieve success.

Under increasingly complex laws and rulings, particularly with respect to taxes, an executor 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 executor should have an understanding of the many problems involved and an organization created for settling estates. In short, an executor should have experience.

FILING SUIT IN AN ESTATE CONTEST RULE 4:84. COMPLAINTS IN CASES IN WHICH SURROGATES COURT NOT ABLE TO ACT 4:84-1. In General In any case in which, under R. 4:82, the Surrogates Court may not act, any person in interest may file a complaint and apply for an order directed to all other interested parties to show cause why the relief sought should not be granted. Service shall be as provided by R. 4:67-3. http://www.njlaws.com/contested_probate.html?id=173&a=

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4:84-2. Probate in the Superior Court If a will is sought to be proved in the Superior Court, proceedings for discovery shall be available pursuant to R. 4:10, R. 4:12 to 4:19 inclusive, R. 4:21 and R. 4:23.

On the taking of a deposition, a photocopy of the will shall be marked for identification by the person before whom the deposition is taken. If the will is admitted to probate, the judgment of the Superior Court shall direct that the will be filed with and recorded by the Surrogates Court. Letters of appointment shall then be issued by the Surrogates Court.

4:84-3. Contested Administration Where administration of an estate has been contested, the judgment of the Superior Court granting administration shall direct issuance and recording of letters of administration by the Surrogates Court.

4:84-4. Appointment of Substituted Trustees An action for the appointment of a substituted trustee (a trustee not named in the trust document) of an inter vivos or testamentary trust shall be brought pursuant to R. 4:83.

The complaint shall have attached a copy of the trust instrument and the acceptance by the person or persons seeking the appointment. The order to show cause shall be served upon all persons having an interest in the trust, vested or contingent, except as otherwise provided by R. 4:26-3 (virtual representation), and upon any trustees then serving. The judgment shall direct the issuance by the Surrogates Court of letters of trusteeship.

4:84-5. Appointment of Administrator Pendente Lite or Other Limited Administrator No order appointing an administrator pendente lite or other limited administrator shall be entered by the Superior Court without either notice to the persons in interest or their written consent, unless it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable damage will result before notice can be served and a hearing had thereon. If an order is granted without notice, it shall give any person in interest leave to move for the discharge of the administrator on no more than 2 days notice. This rule shall not apply to the administrator ad prosequendum in http://www.njlaws.com/contested_probate.html?id=173&a=

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an action for wrongful death.

RULE 4:85. REVIEW BY SUPERIOR COURT OF ACTIONS BY SURROGATES COURT: GENERAL PROVISIONS 4:85-1. Complaint; Time for Filing If a will has been probated by the Surrogates Court or letters testamentary or of administration, guardianship or trusteeship have been issued, any person aggrieved by that action may, upon the filing of a complaint setting forth the basis for the relief sought, obtain an order requiring the personal representative, guardian or trustee to show cause why the probate should not be set aside or modified or the grant of letters of appointment vacated, provided, however, the complaint is filed within four months after probate or of the grant of letters of appointment, as the case may be, or if the aggrieved person resided outside this State at the time of the grant of probate or grant of letters, within six months thereafter.

If relief, however, is sought based upon R. 4:50-1(d), (e) or (f) or R. 4:50-3 (fraud upon the court) the complaint shall be filed within a reasonable time under the circumstances. The complaint and order to show cause shall be served as provided by R. 4:67-3. Other persons in interest may, on their own motion, apply to intervene in the action.

4:85-2. Enlargement of Time The time periods prescribed by R. 4:85-1 may be extended for a period not exceeding 30 days by order of the court upon a showing of good cause and the absence of prejudice.

4:85-3. After-Discovered Will (a) Order to Show Cause. Where administration has been granted and subsequently a will is offered for probate or where probate of a will has been granted and subsequently a later will is offered for probate, the person offering such will may, upon the filing of a complaint, move without notice for an order requiring all interested persons to show cause why probate of such will should not be granted. The complaint shall be filed in the county where the original administration or probate was granted.

If, on the return date or thereafter, new probate is granted, http://www.njlaws.com/contested_probate.html?id=173&a=

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the court shall require the administrator or prior executor to make final settlement of his or her account and thereafter shall make such order respecting commissions as is appropriate. (b) Probate by Surrogate. If, on the return date of the order to show cause, there is no objection to the offering of the after-discovered will for probate, the Surrogate may enter an order that it be lodged for probate and thereafter proceed with probate unless a caveat has been filed or doubt arises from the face of the will.

KENNETH VERCAMMEN, ESQ. RECENT SPEAKING ENGAGEMENTS ON WILLS, ELDER LAW, AND PROBATE Edison Adult School Wills, Elder Law & Probate- 2002, 2001, 2000,1999,1998,1997 Old Bridge AARP 2002; Guardian Angeles/ Edison 2002; St. Cecelia/ Woodbridge Seniors 2002; Temple Beth Or 2002; -Linden AARP 2002 Woodbridge Housing 2001; Chelsea/ East Brunswick 2001, Village Court/ Edison 2001; Old Bridge Rotary 2001; Sacred Heart/ South Amboy 2001; Livingston Manor/ New Brunswick 2001 -Wills and Estate Administration - Woodbridge Adult School 2001, 2000,1999,1998,1997,1996 -Wills and Elder Law Metuchen Adult School 1999,1997,1996,1995,1994,1993 -Clara Barton Senior Citizens- Wills & Elder Law-Edison 2002, 1995 -AARP Participating Attorney in Legal Plan for NJ AARP members -Senior Legal Points University of Medicine & Dentistry UMDNJ & St. Peters-2000, 1999,1998 -East Brunswick AARP Wills 2001 -Iselin/ Woodbridge AARP Wills 2000 -Metuchen Reformed Church; Franklin/ Somerset/ Quailbrook Seniors 2001 North Brunswick Senior Day 2001 -Wills, Elder Law and Probate-South Brunswick Adult School 1999,1997,1993 Wills and Estate Planning-Old Bridge Adult School 1998,1997,1995 -Senior Citizen Law-Perth Amboy YMHA 1995 -Wills, Living Wills and ProbateSpotswood Community School 1995,1994,1993 -Wills and Probate-Sayreville Adult School 1997, 1996,1995,1994 -Living Wills-New Jersey State Bar Foundation and St. Demetrius, Carteret 1994 -Wills and Estate Planning-Edison Elks and Senior Citizens January 1994 -"Legal Questions Clinic" Metuchen Adult School March 1995,1994,1993 -Estate Planning to Protect Families-Metuchen Chamber of Commerce April 1993 http://www.njlaws.com/contested_probate.html?id=173&a=

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Living Wills-Dean Witter and Nordstroms, Menlo Park Mall October 1992; Trusts and Living Wills-Dean Witter, Metro Park, June 1992; Estate Planning-North Brunswick Republican Club May 1992; -Wills and Power of Attorney 1991 Edison Democratic Association New Jersey State Bar Association -General Practice Section-Board of Directors 1995- Present ADJUNCT PROFESSOR Middlesex County College Edison, NJ February, 2001-April, 2001; Jan. 1990-May, 1991 New Jersey Superior Court - Certified Mediator 1997New Jersey Supreme Court Committee on Municipal Court Education: Appointed by Chief Justice Robert N. Wilentz 1990 - 1997

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Since 1985, KENNETH VERCAMMEN has worked as a personal injury attorney, working for injury victims and their families. By taking a hard-hitting, aggressive approach toward the insurance companies, KENNETH VERCAMMEN and our cocounsel have consistently obtained outstanding results for many injured clients over the years I am proud to have worked on cases in various capacities, small and large. While obviously prior results cannot guarantee the outcome of future cases, I can guarantee that you case will receive the same degree of dedication and hard work that went into each of these prior cases.

In direct contrast to the hard-hitting approach we take toward the insurance companies is the “soft� approach we take toward our clients. I am proud of my compassionate staff as I am of the outstanding financial results they have achieved. For many years, I have watched them treat our clients with patience, dignity and respect. I would have it no other way.

Many years ago, I attended a seminar sponsored by the American Bar Association on Law Practice Management. This was to help insure that each of our clients is always treated like a person -- not a file! We recognize that you are innocent victims and that you have placed your trust in us. Please understand that we understand what you are going through. Feel comforted that we are here to help you. http://www.njlaws.com/contested_probate.html?id=173&a=

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If you retain KENNETH VERCAMMEN to represent you, we will give you the same advice we give each of our clients -- concentrate on your life, you family and your health. We will take care of everything else. Leave all of the work and worry about your legal rights to us. Trust us. Believe in us. Have faith in us as your attorneys.

Understand that we will always to do what we believe is best for you and your case.

Helping you is our job. In fact, it is our only job -- guiding injury victims like you through one of the most difficult times of your lives, with care and concern -- while fighting aggressively to the limits of the law to obtain compensation and justice for each of you!

Print our Personal Injury Questionnaire on our Website, Fill it out and Fax back, so we can determine if we can help you obtain an injury settlement. We would welcome an opportunity to prove to you what we have proven to thousands of injured clients -that you can feel comfortable and secure in the fact that KENNETH VERCAMMEN Trial Attorney We Fight To Win. When you have been injured in an accident or collision, you are worried about who is going to pay your medical bills, lost wages, and other damages. The last thing you want is to be taken advantage of by an insurance company. If you don’t protect your rights, you may not be able to make a claim.

Insurance companies have attorneys and adjusters whose goal is to pay you as little as they can. You need a New Jersey personal injury lawyer to fight for you. I am dedicated to helping your recover as much money as possible under the law.

You need an attorney who will work hard to protect your rights, maximize your insurance settlement and minimize the hassles of dealing with the insurance companies.

You need an experienced and aggressive New Jersey trial lawyer with PROVEN RESULTS who will fight for you. Having an experienced personal injury lawyer can make the difference between getting what you deserve and getting nothing.

Without the threat of a lawyer who is willing to go to trial and seek a big jury verdict, why would an insurance company pay you what your claim is really worth?

Lawsuits can be expensive, and many people do not have the money to pursue their claim. In every case, I advance all costs associated with pursuing your case and I do not ask you for a penny until we recover from the other side.

I am an experienced aggressive trial lawyer and a 3rd degree Black Belt. I am not afraid to take your case to trial if that is what it takes to maximize the amount of money your recover for your personal injury. I offer one-on-one service, and I will not hand your case off to an inexperienced lawyer or a paralegal.

Reduce the stress of making a claim.

Personal injury accidents can turn your life upside down. Making a personal injury claim can be difficult and time consuming. Once I take your case, you can stop worrying about dealing with the insurance companies and focus on recovering from http://www.njlaws.com/contested_probate.html?id=173&a=

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your injuries. I take care of all of the paperwork, phone calls, and negotiations, so you can get on with your life. p.s. For those clients who are afraid or reluctant to go to Court, KENNETH VERCAMMEN also offers a special -- “For Settlement Only” -- program. This means that if we are unable to settle with the insurance company, we will not go any further -unless you want us to. You have my personal assurance that there will be absolutely no pressure and no obligation.

We handle personal injury cases on a contingency fee basis.

This means: YOU DON’T OWE ME A LEGAL FEE UNLESS I RECOVER MONEY FOR YOU. Call our office to schedule a "confidential" appointment 732-572-0500 Kenneth A. Vercammen is the Managing Attorney at Kenneth Vercammen & Associates in Edison, NJ. He is a New Jersey trial attorney has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appears in Courts throughout New Jersey each week on personal injury matters, Criminal /Municipal Court trials, and contested Probate hearings.

Mr. Vercammen has published over 125 legal articles in national and New Jersey publications on criminal, elder law, probate and litigation topics. He is a highly regarded lecturer on litigation issues for the American Bar Association, NJ ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published in noted publications included New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer. He is the Editor in Chief of the American Bar Association Tort and Insurance Committee Newsletter.

Admitted In NJ, NY, PA, US Supreme Court and Federal District Court.

Contact the Law Office of Kenneth Vercammen & Associates, P.C. at 732-572-0500 for an appointment.

The Law Office cannot provide legal advice or answer legal questions over the phone or by email. Please call the Law office and schedule a confidential "in office" consultation . .

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Disclaimer This web site is purely a public resource of general New Jersey information (intended, but not promised or guaranteed to be correct, complete, or up-to-date). It is not intended be a source of legal advice, do not rely on information at this site or others in place of the advice of competent counsel. The Law Office of Kenneth Vercammen complies with the New Jersey Rules of Professional Conduct. This web site is not sponsored or associated with any particular linked entity unless specifically stated. The existence of any particular link is simply intended to imply potential interest to the reader, inclusion of a link should not be construed as an endorsement.

Š 2011 Kenneth Vercammen & Associates, P.C.

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