Pre Trial Motions in Drug Case

1. No discovery Send a discovery letter/letter of representation to both the District Attorney/Municipal Prosecutor, Police Records Bureau of the law enforcement agency which issued the complaint and the Court Clerk. Failure of the state to provide discovery may be grounds to dismiss the charges.

2. Suppression A timely Motion to Suppress Evidence must be made. Do it immediately; do not wait to receive discovery.

3. Subpoena witnesses defense counsel should subpoena witnesses, sometimes even serving a subpoena duces tecum on the arresting officer to compel him to bring to court the object allegedly observed in plain view. Credibility will be tested when the object that was claimed to be in plain view inside a car is actually only one half inch long. Cross examination is pivotal in determining credibility. Failure to subpoena a witness may be malpractice if your necessary witness is not present.

4. First Offender programs Many states provide that a person not previously convicted of a drug offense and who has not previously been granted "supervisory treatment" may apply for a conditional discharge/dismissal of charges. The court, upon notice to the prosecutor, may suspend further proceedings and place the defendant on supervisory treatment (i.e., probation, supervised or unsupervised attendance at Narcotics Anonymous, etc.).

5. No lab tests The State must prove the substance seized was a controlled dangerous substance (CDS). To prove the substance is CDS, either the lab technician who examined the substance must be called testify, or the State will have to admit the lab certificate. If the State intends to proffer the lab certificate at the trial, a notice of an intent to proffer that certificate, and all reports relating to the analysis of the CDS, should be served by the state on defense counsel. This includes an actual copy of the lab certificate. Defense counsel must notify the prosecutor in writing of defendant's objection to the admission into evidence of the certificate, plus set forth the grounds for objection. Failure by defense counsel to timely object shall constitute a waiver of any objection to the certificate, thus, the certificate will be submitted into evidence. If the state can't introduce lab results, the state can't use.

6. Chain of Custody The State must then establish a chain of custody. The prosecutor's witness will call additional witnesses to prove the locations of the seized drugs from the moment of initial seizure to the time of the testing of the illegal drug. Defense counsel can contest the chain of custody.

7. Confession excluded If the state will be attempting to introduce a confession or other incriminating statements, defense counsel may request an Evidence rule hearing to determine if the requirements of Miranda v. Arizona 384 US. 436 (1966) have been violated. 8. Constructive possession not proven The burden of primary possession/constructive possession remains on the State.

The State must prove it was defendant's conscious intention to obtain or possess the item while being aware it was cocaine. Defendant's constructive possession may sometimes be shown by proof that the narcotics were subject to dominion and control. If two or more persons share actual or constructive possession, then their possession is joint. However, mere presence on premises where CDS is found is not sufficient, in itself, to justify an inference that a particular defendant was in sole or joint possession of the substance.
See http://www.njlaws.com/defense_to_possession_of_drugs.html

NJ Inheritance Tax

Currently, the law imposes a graduated Transfer Inheritance Tax ranging from 11% to 16% on the transfer of real and personal property with a value of $500.00 or more to certain beneficiaries.

The Transfer Inheritance Tax recognizes five beneficiary classes, as follows: Class A - Father, mother, grandparents, spouse, child or children of the decedent, adopted child or children of the decedent, issue of any child or legally adopted child of the decedent and step-child of the decedent. Class B - Eliminated by statute effective July 1, 1963. Class C - Brother or sister of the decedent, including half brother and half sister, wife or widow of a son of the decedent, or husband or widower of a daughter of the decedent. Class D - Every other transferee, distributee or beneficiary who is not included in Classes A, C or E.

Class E - The State of New Jersey or any political subdivision thereof, or any educational institution, church, hospital, orphan asylum, public library or Bible and tract society or to, for the use of or in trust for religious, charitable, benevolent, scientific, literary or educational 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 educational institutions and organizations of other states, the District of Columbia, territories and foreign countries which do not grant an equal, and like exemption on transfers of property for the benefit of such institutions and organizations of this State.

Rate The Transfer Inheritance Tax rates depend on the amount received and the relationship between the decedent and the beneficiary. No tax is imposed on class A beneficiaries (father, mother, grandparents, descendants, spouses, civil union partners, or domestic partners). Class C beneficiaries (brother or sister of decedent; husband, wife, or widow(er) of a child of decedent; civil union partner or surviving civil union partner of a child of decedent) are taxed at 11%–16%, with the first $25,000 exempt. Class D beneficiaries (not otherwise classified) are taxed at 15%–16%, with no tax on transfers having an aggregate value of less than $500. Charitable institutions are exempt from tax
http://www.njlaws.com/inheritance_tax.html

Leaving scene of an accident ticket

http://www.njlaws.com/129d.html
39:4-129(b) Leaving the scene of
accident involving
damages to attended
vehicle or property
First offense: Fine or
imprisonment not exceeding 30
days, or both, and suspension of
driving privileges for six months
from date of conviction
$200 $400
plus 2 NJ MVC points
plus 2 car insurance points

Subsequent offense: Fine or
imprisonment not less than 30
days nor more than 90 days, or
both, and suspension of driving
privileges for 1 year from date of
conviction
$400 $600
39:4-129, 39:4-130 Leaving Scene of Accident and Failure to Report, Car Accident

Kenneth Vercammen's Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey. There is mandatory 6 month loss of license for leaving the scene. Our goal as the attorney is to negotiate with the prosecutor to reduce down to a violation with no suspension.
39:4-129   Action in case of accident.
 39:4-129 . (a) The driver of any vehicle, knowingly involved in an accident resulting in injury or death to any person shall immediately stop the vehicle at the scene of the accident or as close thereto as possible but shall then forthwith return to and in every event shall remain at the scene until he has fulfilled the requirements of subsection (c) of this section.  Every such stop shall be made without obstructing traffic more than is necessary.  Any person who shall violate this subsection shall be fined not less than $2,500 nor more than $5,000, or be imprisoned for a period of 180 days, or both.  The term of imprisonment required by this subsection shall be imposed only if the accident resulted in death or injury to a person other than the driver convicted of violating this section.
More info at http://www.njlaws.com/leaving_the_scene.html
In addition, any person convicted under this subsection shall forfeit his right to operate a motor vehicle over the highways of this State for a period of one year from the date of his conviction for the first offense and for a subsequent offense shall thereafter permanently forfeit his right to operate a motor vehicle over the highways of this State.

Improper Use of Power of Attorney

http://www.njlaws.com/Fiduciary_Duties_Obligations_and_Liabilities.html
Breach of fiduciary

The New Jersey Supreme Court has described the elements of a claim for breach of fiduciary duty as follows:
The essence of a fiduciary relationship is that one party places trust and confidence in another who is in a dominant or superior position. A fiduciary relationship arises between two persons when one person is under a duty to act for or give advice for the benefit of another on matters within the scope of their relationship. Restatement (Second) of Torts§ 874 cmt. a (1979) . . . . The fiduciary’s obligations to the dependent party include a duty of loyalty and a duty to exercise reasonable skill and care. Restatement (Second) of Trusts §§ 170, 174 (1959). Accordingly, the fiduciary is liable for harm resulting from a breach of the duties imposed by the existence of such a relationship. Restatement (Second) of Torts § 874 (1979).
[McKelvey v. Pierce, 173 N.J. 26, 57 (2002) (quoting F.G. v. MacDonell, 150 N.J. 550, 563-64 (1997)).]
   Financial exploitation of older persons, including the systematic depletion of bank accounts or other resources for the benefit of the abuser, has been tagged the "crime of the 90s."' The number of financial exploitation cases will only continue to rise as the population continues to age. Despite the increase in financial abuse cases, law enforcement officials remain reluctant to pursue perpetrators of abuse, traditionally viewing the situation as a family matter best resolved by civil litigation.
 Because an agent owes a fiduciary duty to his or her principal, a cause of action for breach of that  fiduciary duty may redress a wide variety of aberrant conduct by an agent. An agent is required to act for the advancement of the interests of the principal. The agents may not serve or acquire any private interest of his or her own that is adverse to the interests of the principal without the principal's consent.  The duty of the agent to the principal is one of utmost good faith and loyalty. Furthermore, agents, as fiduciaries, are required to make full disclosure to their principals of all information material to a transaction. An agent that breaches his or her fiduciary duty may be liable in tort. All of the traditional tort damages are available, including punitive damages where conduct is wanton or willful. An agent who is dishonest may also forfeit his or her right to compensation for those duties.

  Conversion
 Conversion is the wrongful or unauthorized exercise of dominion or control over a chattel. A conversion action is a tort. The tort of conversion is "bottomed upon a tortious interference with possessory rights."
 Under the common law, an agent has a duty to account to his principal. An agent must keep and render accounts and, when called upon for an ac- counting, has the burden of proving that she or he properly disposed of funds that she or he is shown to have received for her or his principal. The relationship between a principal and an attorney-in-fact can be analogized to the relationship between a trust beneficiary and trustee. Thus, the agent bears the burden of proving that he or she has properly disposed of funds.
 The elements of a cause of action for breach of fiduciary duty are:
(1) Plaintiff and Defendant share a relationship whereby:
(a) Plaintiff reposes trust and confidence in Defendant, and
(b) Defendant undertakes such trust and assumes a duty to advise, counsel and/or protect Plaintiff;
(2) Defendant breaches its duties to Plaintiff; and
(3) Plaintiff suffers damages.
     The elements of a claim for breach of fiduciary duty are not fixed as the claim may arise from virtually any case where one party accepts the trust and assumes the duty to protect a weaker party.

Handicapped Parking Tickets

NEW JERSEY HANDICAPPED PARKING LAWS
-Prohibit parking motor vehicles in handicapped spaces without a special vehicle identification card; mandate initial and subsequent fines of $250 each and up to 90 days of community services (C.39:4-197.(3)c).
- Authorize municipalities to establish handicapped spaces in front of residences, schools, hospitals, public buildings, and in shopping and business districts (C.39:4-197.5).
Municipalities may establish accessible spaces in front of residences, schools, hospitals, public buildings, and in shopping and business districts. (C.39:4-197.5)
- Municipalities may establish accessible parking zones in front of residences occupied by people with disabilities, unless such parking interferes with the normal flow of traffic. (C.39:4-197.6)
-Enable enforcement officers to enforce handicapped parking laws on both public and private property (C.39:4-138.o).
-Authorize municipalities to set up parking enforcement units that concentrate on shopping centers and malls (C.39.4-197.9).
- Authorize eligible people with disabilities to request law enforcement officers to arrange for the removal and storage of motor vehicles unlawfully parked in handicapped parking spaces or zones (C.39:4-207.7).Temporary Placards (see Fig. 3) can be granted for short-term mobility impairments. Written medical certification from a qualified practitioner is required. Temporary Placards are valid for six months, are renewable one time at the discretion of the issuing authority, and are issued by the chief of Police of each municipality. (C.39:4-206)
• Parking motor vehicles in accessible spaces without special vehicle identification is prohibited and punishable with an initial fine of $250 and subsequent fines of at least $250 and up to 90 days of community service. (C.39:4-197(3)c)
• Law enforcement officers may enforce accessible parking laws on both public and private property. (C.39:4-138.o)
• Municipalities may set up parking enforcement units that concentrate on shopping centers and malls. (C.39.4-197.9)
• Eligible individuals with a disability may request law enforcement officers to arrange for the removal and storage of motor vehicles unlawfully parked in accessible parking spaces or zones. (C.39:4- 207.7)
• Access to parking spaces, curb cuts, or other improvements designed to provide accessibility, shall be unobstructed. Owners or controllers of public parking areas must remove snow or ice from these areas within 24 hours after the weather condition causing the snow and/or ice ceases. Violation of this act is punishable with penalties of $500 to $1,000. (C.394:4-207.9)**
RKING IN NEW JERSEY
NJ Statutes outline the following:
• Every application for the issuance or renewal of a “person with a disability identification card”  required every three years, must include medical certification from a qualified practitioner that the qualifying disability continues to exist. (C.39:4-205)
• The “Person with a Disability Identification Card” must be in the vehicle or with the qualified person at all times as proof of disability. This card is for the sole use of the individual with a disability and is non—transferable. Abuse or misuse of this privilege will be cause for immediate revocation of the ID card, placard and plates and fines of at least $250.00. (C.39:4-205)
• Permanent Placards are required to be renewed every three years and will clearly display the date on which they shall become invalid. (C.39:4-206)

Guardianship of Adults

Action for Guardianship of a Mentally Incapacitated Person, Rule 4:86
According to Disability Law, A Legal Primer published by the New Jersey State Bar Association, "A guardian is a person appointed by a court to make financial and personal decisions for a person proven to be legally incompetent." p11

1. When is a guardian needed? A guardian is needed when an individual can not manage his or her life as a result of a mental or physical disability, alcohol or drug addiction. The person for whom a guardian is appointed is called a "ward". Disability Law at p11

Recently the legislation changed the designation of "mental incompetent" to "incapacitated person" in all laws, rules, regulations and documents.

2. What rights does a incompetent lose? Unless a Court orders otherwise, a ward/ incompetent does not have the right to decide where to live, spend money, use property, appear in Court or undergo medical treatment without the approval of his or her guardian. An unmarried incompetent also loses the right to marry.

3. How does somebody become the guardian of another? Guardians are appointed by Courts after the person in need of guardianship is proven incompetent. Guardianship actions can be brought under the general incompetency statute (N.J.S.A. 3B:12-25 et seq.) or under the statute dealing with people who receive services from the State Division of Developmental Disabilities. N.J.S.A.. 30:4-165.4 et seq. Guardians who are married to the incompetent or are parents of an unmarried incompetent can choose who will become the guardian after the guardians die and include a clause designating their successor in their wills. Disability Laws p12 Under the general incompetency statute, a Complaint requesting Guardianship must be filed in the Superior Court, plus a detailed Affidavit by the person requesting to be Guardian detailing the assets of the incompetent plus reasons why the incompetent is no longer able to manage their affairs. Affidavits of two doctors are also needed. The Court will appoint a temporary attorney to interview the incompetent and prepare a report to the Court.

4. Who can be a guardian? Generally, a close relative or a person with a close relationship to the proposed incompetent who will act to protect the incompetents best interests can be guardian. when a close friend or relative is not available, the Court may appoint the Public Guardian (for persons over 60) or an Attorney to serve as guardian.

5. What are the rights of the proposed incompetent prior to hearing? The proposed incompetent is entitled to receive advance notice of the guardianship hearing, to be represented by a lawyer and to present a defense at the hearing.

6. What happens if the incompetent regain the ability to manage his or her affairs? The incompetent came then go back to Court and ask to be made his or her own guardian again, but first must show that he or she has regained "sound reason".

7. When is a guardian not needed? Just because a person has a disability, does not mean that they need a guardian. A guardian is not needed if a person can make, and understands the nature of the decisions, and communicate the decisions to others. A guardian is not required for someone who has a physical disability, but who can manage his or her affairs, and is not needed if a person merely has a problem managing money or property. Disability Law p12
http://www.njlaws.com/action_for_guardianship.html

Trusts within Wills to protect children's assets

Set up Trusts within Wills to protect Assets of children under age 30

Example  The principal held in each child's share shall be distributed to him or her upon his or her attaining the age of thirty (30) years.
 In the event either of my children have not attained the age of thirty (30) years, if he or she has attained or upon his or her attaining the age of twenty two (22) years, my Trustee shall distribute one-third (1/3) of the principal held in such child's share to him or her.
 If either child has attained or upon attaining the age of twenty five (25) years, an additional one-half (1/2) of the balance of the principal held in such child's share shall be distributed to him or her.  Upon attaining the age of thirty (30) years, the balance of the principal held in such child's share shall be distributed to him or her. More info at http://www.njlaws.com/wills_children_and_guardians.htm

 There may come a time when a parent is  unable, due to physical or mental incapacity, to take care of their minor children. In these circumstances, those caring for the children as well as the courts will need direction. By writing and executing a Will which includes instructions on guardianship one may select someone, either individually or jointly,  with the legal authority to act for minor children and assume control over the assets of the children. Estate planning, which includes the execution of a Will, is just as important for young families with minor children as they are for senior citizens.
Guardians
     Most individuals appoint their spouse to act as Guardian of the person and property of their minor children.  It is suggested that your Will include a clause which provides that in the event your spouse predeceases you, or is unsuitable or ceases to act as Guardian of the person and property of your minor children, you appoint a trusted family member or close friend to act as successor Guardian of the person and property of your minor children.

Trustee
     Select a trusted person, a close relative or friends, who will invest and hold your children's money.  In your Will you can  instruct the Trustee to apply amounts of income and principal as they, in their sole discretion, deem proper for the health, maintenance, education, welfare, or support of your children or other minors. Direct that the trustee shall accumulate any income not needed for the above purposes, paying and transferring the portion held in trust to the beneficiary upon his or her attaining the age of majority or whichever age you select.

Theft charges and penalties

(3)Theft constitutes a crime of the fourth degree if the amount involved is at least $200.00 but does not exceed $500.00.
If the amount involved was less than $200.00 the offense constitutes a disorderly persons offense.
Criminal Indictable and Disorderly Offense  Penalties

Disorderly person criminal offenses- ex Simple Assault, shoplifting & cases in Municipal Court
  Jail 2C: 43- 8 jail  6 month maximum
  probation 1-2 year    
  community service  180 days maximum
  mandatory costs, VCCB and other penalties
Disorderly- fines: 2C: 43- 3  $1,000 Fine  maximum

 There are many other penalties that the court must impose in criminal cases.  There are dozens of other penalties a court can impose, depending on the type of matter.
 Drug offenses: in addition to above penalties, mandatory minimum $500 DEDR penalty, mandatory lab fee and other court costs over $200, mandatory 6 month- 2 year loss of license, Probation, drug testing and other penalties. If attorney's Conditional Discharge motion is granted for first time offender. penalty can be reduced. In certain drug cases, the fine can be up to $75,000.

-Petty Disorderly person - 30 days jail   maximum
Petty DP $500 max Fine, VCCB and other penalties

 Indictable Criminal Penalties    [Felony type]  [ Superior Court]
     Jail  potential          Fine max Probation
 1st degree 10- 20 years $200,000 [presumption of jail]
 2nd degree 5-10 years $150,000 [presumption of jail]
 3rd degree 3- 5 years $15,000 1 year- 5 year
 4th degree 0- 18 months $10,000 1 year- 5 year

 There are many other penalties that the court must impose in criminal case.  There are dozens of other penalties a court can impose, depending on the type of matter. Read www.njlaws.com/jail_for_crimes_and_disorderly_conduct.html

 If you or a family member are charged with a criminal offense, you should retain an experienced criminal attorney to argue to reduce the penalties!

Tenants by entirety, joint tenants and tenants in common

NJSA 3B:6-4 Division of Property, Joint Tenants or Tenants by the Entirety

3B:6-4. Division of property, joint tenants or tenants by the entirety

Where there is no sufficient evidence that two joint tenants or tenants by the entirety have died otherwise than simultaneously, the property so held shall be distributed one-half as if one had survived and one-half as if the other had survived. If there are more than two joint tenants and all of them have so died, the property thus distributed shall be in the proportion that one bears to the whole number of joint tenants.

For more info visit http://njlaws.com/3b_6-4.html?id=2205&a=

Speeding penalties 39:4-98 fines, points, surcharge, suspension

39:4-98 Speeding
Fine or imprisonment not
exceeding 15 days, or both when
guilty. Fine doubled when driving
20 mph over speed limit or 10 mph
over in a 65 mph zone
$50 $200

NJ MVC Points 39:4-98 or Speeding up to 14mph above limit 2
39:4-99 Speeding 15-29 mph above limit 4
Speeding 30 mph or more above limit 5
39:4-104
39:4-98.7

Plus 2-5 car insurance points
Plus Judge Can Suspend DL for Willful Traffic Offense.
State v. Moran  202 NJ 311 (2010)
 The license suspension provision of N.J.S.A. 39:5-31, which is published in the Motor Vehicle Code of the New Jersey Statutes Annotated, is not “hidden,” and defendant, like all motorists, is presumed to know the law.  To ensure that license suspensions meted out pursuant to N.J.S.A. 39:5-31 are imposed in a reasonably fair and uniform manner, so that similarly situated defendants are treated similarly, the Court today defines the term “willful violation” contained in N.J.S.A. 39:5-31 and enunciates sentencing standards to guide municipal court and Law Division judges

More info at http://www.njlaws.com/speeding_and_radar.htm

Specific bequest of property and money in a Will

Wills & Estate Administration

SAVE MONEY AND PROVIDE FOR YOUR LOVED ONES

As average Americans, we work 80,000 hours in a lifetime, or 45 to 55 years. In spite of all the resources and assets we earn, the vast majority of us do not take the time to create a will.

National statistics indicate that 80% of Americans die without leaving a will. There are several reasons for this: fear of death; procrastination; and misinformation (people presume that only the rich need to have wills). Whatever the excuse, it is clear that people would benefit from having a will.

In the absence of a will or other legal arrangement to distribute property at death, the state must step in to administer the estate. The result can be lengthy delays before the rightful heirs receive their property. And because the state has no instructions from the deceased, no charitable gifts will be made.

IF YOU HAVE NO WILL:

If you leave no Will or your Will is declared invalid because it was improperly prepared or is not admissible to probate:

* State law determines who gets assets, not you * Additional expenses will be incurred and extra work will be required to qualify an administrator * Judge determines who gets custody of your children * Possible additional State inheritance taxes and Federal estate taxes * If you have no spouse or close relatives the State may take your property * The procedure to distribute assets becomes more complicated-and the law makes no exceptions for persons in unusual need or for your own wishes. * It may also cause fights and lawsuits within your family When loved ones are grieving and dealing with death, they shouldn’t be overwhelmed with Financial concerns. Careful estate planning helps take care of that.

THE FOLLOWING IS A SAMPLE OF A VARIETY OF CLAUSES AND ITEMS WHICH SHOULD BE INCLUDED IN A WILL:

1ST: DEBTS AND TAXES 2ND: SPECIFIC BEQUESTS 3RD: DISPOSITION TO SPOUSE 4TH: DISPOSITION OF REMAINDER OF ESTATE 5TH: CREATION OF TRUSTS FOR SPOUSE 6TH: CREATION OF TRUST FOR CHILDREN 7TH: OTHER BENEFICIARIES UNDER 21 8TH: EXECUTORS 9TH: TRUSTEES 10TH: GUARDIANS 11TH: SURETY OR BOND 12TH: POWERS 13TH: AFTERBORN CHILDREN 14TH: PRINCIPAL AND INCOME 15TH: NO ASSIGNMENT OF BEQUESTS 16TH: GENDER 17TH: CONSTRUCTION OF WILL 18TH: NO CONTEST CLAUSE

A will must not only be prepared within the legal requirements of the New Jersey Statutes but should also be prepared so it leaves no questions regarding your intentions.

WHY PERIODIC REVIEW IS ESSENTIAL

Even if you have an existing Will, there are many events that occur which may necessitate changes in your Will. Some of these are:

* Marriage, death, birth, divorce or separation affecting either you or anyone named in your Will

*Significant changes in the value of your total assets or in any particular assets which you own

* A change in your domicile

* Death or incapacity of a beneficiary, or death, incapacity or change in residence of a named executor, trustee or guardian of infants, or of one of the witnesses to the execution of the Will

*Annual changes in tax law

MAY I CHANGE MY WILL?

Yes. A Will may be modified, added to, or entirely changed at any time before your death provided you are mentally and physically competent and desire to change your Will. You should consider revising your Will whenever there are changes in the size of your estate. For example, when your children are young, you may think it best to have a trust for them so they do not come into absolute ownership of property until they are mature. Beware, if you draw lines through items, erase or write over, or add notations to the original Will, it can be destroyed as a legal document. Either a new Will should be legally prepared or a codicil signed to legally change portions of the Will.

School bus passing penalties 39 4 128 1

39:4-128.1 Passing school bus while
picking up or discharging
First offense: Fine or
imprisonment not exceeding 15
days or 15 days community
service, or both
fine $100 -$1,000

5 NJ MVC Points 39:4-128.1 Improper passing of school bus 5
Plus 5 car insurance points
Plus Judge Can Suspend DL for Willful Traffic Offense.
State v. Moran  202 NJ 311 (2010)
 The license suspension provision of N.J.S.A. 39:5-31, which is published in the Motor Vehicle Code of the New Jersey Statutes Annotated, is not “hidden,” and defendant, like all motorists, is presumed to know the law.  To ensure that license suspensions meted out pursuant to N.J.S.A. 39:5-31 are imposed in a reasonably fair and uniform manner, so that similarly situated defendants are treated similarly, the Court today defines the term “willful violation” contained in N.J.S.A. 39:5-31 and enunciates sentencing standards to guide municipal court and Law Division judges


Subsequent offense: Fine or
imprisonment not exceeding 15
days, or both
$250 -$1,000

Plus Judge Can Suspend DL for Willful Traffic Offense.
State v. Moran  202 NJ 311 (2010)
 The license suspension provision of N.J.S.A. 39:5-31, which is published in the Motor Vehicle Code of the New Jersey Statutes Annotated, is not “hidden,” and defendant, like all motorists, is presumed to know the law.  To ensure that license suspensions meted out pursuant to N.J.S.A. 39:5-31 are imposed in a reasonably fair and uniform manner, so that similarly situated defendants are treated similarly, the Court today defines the term “willful violation” contained in N.J.S.A. 39:5-31 and enunciates sentencing standards to guide municipal court and Law Division judges

NJSA 39:4-128.1 Passing a School Bus - Penalties

www.njlaws.com/passing_school_bus.html?id=913&a=
Kenneth Vercammen's Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey.

Sale of house in a probate case

REAL ESTATE TRANSFER SERVICES

We provide representation  in the sale of the subject property. I  represented the above client at all stages from the review of the initial contract, through review of the title papers, attendance at Closing and assistance in canceling any liens or Mortgages. My usual fee for such representation when the closing is in Middlesex County is $800.00 plus all costs.

Partial list of additional services performed:
Analyze Contract and recommend revisions
Review old Deed, survey
Numerous telephone calls with buyers attorney and other individuals
Numerous correspondence to  and from buyers attorney and clients
Preparation of Deed
Preparation of Affidavit of Title
Review Title Binder and Judgment Searches, if applicable
Review RESPA pre-closing, if applicable
More info at http://www.njlaws.com/buying_and_selling_real_estate.html

KENNETH VERCAMMEN & ASSOCIATES, PC
www.njlaws.com
(732)572-0500

Grounds for challenges to a will

In NJ typically there is only 4 months to file a Superior Court complaint to object to a Will which is already filed with the Surrogate
See Rule 4:85-1. Complaint; Time for Filing
If a Will has been probated by the Surrogate's 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.
Commons grounds object to Will is undue influence.      

Undue Influence to challenge a Will or Power of Attorney      
  A grievance based upon undue influence may be sustained by showing that the beneficiary had a confidential relationship with the party who established the account. Accordingly, if the challenger can prove by a preponderance of the evidence that the survivor had a confidential relationship with the donor who established the account, there is a presumption of undue influence, which the surviving donee must rebut by clear and convincing evidence.

Theft charges and penalties

(3)Theft constitutes a crime of the fourth degree if the amount involved is at least $200.00 but does not exceed $500.00.
If the amount involved was less than $200.00 the offense constitutes a disorderly persons offense.
Criminal Indictable and Disorderly Offense  Penalties

Disorderly person criminal offenses- ex Simple Assault, shoplifting & cases in Municipal Court
  Jail 2C: 43- 8 jail  6 month maximum
  probation 1-2 year    
  community service  180 days maximum
  mandatory costs, VCCB and other penalties
Disorderly- fines: 2C: 43- 3  $1,000 Fine  maximum

 There are many other penalties that the court must impose in criminal cases.  There are dozens of other penalties a court can impose, depending on the type of matter.
 Drug offenses: in addition to above penalties, mandatory minimum $500 DEDR penalty, mandatory lab fee and other court costs over $200, mandatory 6 month- 2 year loss of license, Probation, drug testing and other penalties. If attorney's Conditional Discharge motion is granted for first time offender. penalty can be reduced. In certain drug cases, the fine can be up to $75,000.

-Petty Disorderly person - 30 days jail   maximum
Petty DP $500 max Fine, VCCB and other penalties

 Indictable Criminal Penalties    [Felony type]  [ Superior Court]
     Jail  potential          Fine max Probation
 1st degree 10- 20 years $200,000 [presumption of jail]
 2nd degree 5-10 years $150,000 [presumption of jail]
 3rd degree 3- 5 years $15,000 1 year- 5 year
 4th degree 0- 18 months $10,000 1 year- 5 year

 There are many other penalties that the court must impose in criminal case.  There are dozens of other penalties a court can impose, depending on the type of matter. Read www.njlaws.com/jail_for_crimes_and_disorderly_conduct.html

 If you or a family member are charged with a criminal offense, you should retain an experienced criminal attorney to argue to reduce the penalties!

Special Civil Part Suits

Collecting a Money Judgment - Special Civil Part

* Execution on Goods and Chattels (personal property)

* Bank Levy

* Execution Against Wages

* Writs of Execution

* Docketed Judgment

* Information Subpoena

* Court Order for Discovery

* Collecting and Out-of-State Judgment

* Settlement

How your attorney can attempt to force the deadbeat creditor to pay money owed!

If money is owed you because you have been awarded a judgment by the Superior Court or Special Civil Part, you are a judgment creditor. Attorneys usually work on an hourly basis- between $200 /hr and up. It is usually not cost effective to hire an attorney if the amount due is under $1,000.

EXECUTION ON GOODS AND CHATTELS (PERSONAL PROPERTY)

An execution on goods and chattels lets the court try to collect the money owed on a judgment from the debtors bank account or personal property. (Real estate cannot be used to collect money owed in the Special Civil Part.) You must locate and identify the debtors personal property that can be used to satisfy your judgment. Your attorney may, petition that a Court Officer try to sell personal items such as office equipment, etc., at a public sale. The debtor may keep $1,000.00 worth of personal property. If the debtor does not have $1,000.00 in personal property, this method cannot be used to satisfy your judgment and to collect the money owed you. Vehicles- If you ask that the Court Officer seize the debtors motor vehicle, you must be able to show that the vehicle is registered in the name of the debtor. This is done by getting a certified copy of the title and a certified lien search from the New Jersey Division of Motor Vehicles. The Clerk or Court Officer will inform you of additional fees to advertise and sell the property when and if these events occur. A writ of execution is good for one year from the date it is issued, and can be renewed.

BANK LEVY

If you know or can find out where the debtor has a savings or checking account in New Jersey, your attorney may ask that a Court Officer collect your debit from the money in the account. You must provide the number of the bank, the address and the account number, if possible. Court Officers cannot search for bank accounts. After the money has been levied upon by the Court Officer, it is considered frozen. Your attorney must then file a Motion to Turn Over Funds with the court and serve a copy upon the debtor and the bank. If the court grants the motion, the judge will sign the Order to Turn Over Funds that you submitted with your motion. This order will be delivered to the bank by the Court Officer.

more info at http://www.njlaws.com/collecting_a_money_judgement.html

Release & Refunding Bond

Refunding Bond and Release
    Under New Jersey law it is the duty of the fiduciary [Executor or Administrator] to make arrangements to pay bills and other estate expenses and carry out instructions under the Will. NJSA 3B:23-24 provides the fiduciary shall take a Release and Refunding Bond from each beneficiary.

         The attorney for the estate prepares the Release and Refunding Bond. The approximate amount that beneficiary will release is typed on the release form. It is mailed the beneficiaries with the following language:

  “Please read the enclosed draft Release and Refunding Bonds and estate accounting. If you have any questions regarding the accounting, please call the executor directly since they have the bank records. The law office does not have bank records. Every beneficiary will need to sign their Release and Refunding Bond. If any beneficiary does not sign their release and refunding bond, then the estate funds cannot be distributed to anyone until approved by the Superior Court. An Accounting and Court approval under Rule 4:87-1 would take many months. We are requesting all beneficiaries to immediately make arrangements to sign the Release and Refunding Bond in front of a notary, and return it to my office. Please also note under New Jersey law each beneficiary must certify they do not owe child support. Please fill out the child support section by hand.

         The Release & Refunding Bond must be filed with the County Surrogate and a fee paid.  “

More Information

     By statute (N.J.S.A. 3B:23-24) an Executor  or Administrator  is required on paying a beneficiary his/her share of the estate, to take a Refunding Bond and Release from the beneficiary and to file the bond in the Surrogate’s Court.  The statute requires that the Refunding Bond and Release be in the amount or value of the beneficiary’s share of the estate. The beneficiary must sign the Refunding Bond and Release before a Notary Public or attorney.  If the beneficiary is a minor or incapacitated person, the Refunding Bond and Release must be signed by the guardian of the property.  

The Refunding Bond and Release has a dual purpose:          

Refunding – To refund to the Executor or Administrator out of his/her share of the estate his ratable part of any unpaid debts, owed by the testator or intestate, if there are no other assets to pay them.

          Release - To discharge the Executor or Administrator of an estate of his/her duties upon distribution to the beneficiary of his/her share of the estate.          

In an Administration that required a Surety Bond, the Administrator  must request a Certificate of Release from the Surrogate at the time he/she files the Refunding Bond and Release.  A Surety Bond will not be cancelled by the insurance agent unless the Certificate of Release is presented to the agent.

         It is necessary to file the completed Refunding Bond and Release from each beneficiary of the estate with the Surrogate’s Court.  The statutory fee for filing is $ 10.00 per bond and  $ 5.00 for the Certificate of Release.

Source: http://nj.gov/counties/mercer/officials/surrogate/s_refunding.html



         If all the beneficiaries do not sign their Release and Refunding Bond, then a Superior Court lawsuit must be filed called Actions For The Settlement Of Accounts under RULE 4:87. The Court Rule on Accounting is below.

NJSA 3B:23-24. Refunding bond of devisee or distributee A personal representative shall, on paying a devise or distributive share or on delivering an instrument of distribution to the person entitled, take a refunding bond therefor, to be filed in the office of the surrogate of the county wherein he received his letters or in the office of the clerk of the Superior Court, if he received his letters from the Superior Court.
http://www.njlaws.com/probate_release_refund_bond.html

Pretrial Intervention (PTI) Program to Avoid Criminal Trials

The Pretrial Intervention Program (PTI) provides defendants, generally first-time offenders, with opportunities for alternatives to the traditional criminal justice process of ordinary prosecution. PTI seeks to render early rehabilitative services, when such services can reasonably be expected to deter future criminal behavior. The PTI program is based on a rehabilitative model that recognizes that there may be an apparent causal connection between the offense charged and the rehabilitative needs of a defendant. Further, the rehabilitative model emphasizes that social, cultural, and economic conditions often result in a defendants decision to commit a crime. Simply stated, PTI strives to solve personal problems which tend to result from the conditions that appear to cause crime, and ultimately, to deter future criminal behavior by a defendant.

What Are the Benefits of the Pretrial Intervention Program (PTI)?

If PTI is successfully completed, there is no record of conviction and the defendant avoids the stigma of a criminal record. Although no record of a conviction exists, a defendant may want to file for an expungement to remove any record of the original arrest. Early intervention allows rehabilitative services to be provided soon after the alleged offense, in an attempt to correct the behavior that led to the offense. Some of the costs associated with the formal court process are eliminated through acceptance into PTI. PTI provides early resolution of a case, which serves the interests of the victim, the public and the defendant.

PTI reduces the burden on the court and allows resources to be devoted to more serious criminals.

What are the Conditions for Participation in Pretrial Intervention?

Supervision under the PTI program may run from 6 months to three years and is provided by the Probation Division. Certain standard conditions are imposed on those accepted into PTI, such as, random urine monitoring, and assessments of fees, penalties and fines. Additional conditions may also be imposed to require the performance of community service, payment of restitution, and submission to psychological and/or drug and alcohol evaluations and compliance with recommended treatment programs.

If a defendant successfully completes all the conditions of PTI, then the prosecutor dismisses the original charges on the recommendation of the Criminal Division Manager with consent, and there is no record of conviction. If a defendant does not successfully complete the conditions of PTI, then the defendant is terminated from the PTI program and the case is returned to the ordinary course of prosecution.

Who is Eligible for Pretrial Intervention (PTI)?

Any defendant who is charged with an indictable offense may apply.

Admission guidelines stated in the Court Rules set the following criteria:

Age - PTI is designed for adults.

Jurisdiction - Only defendants charged with indictable offenses in New Jersey may apply.

Minor Violations - Charges that would likely result in a suspended sentence without probation or a fine are generally not eligible. Those charged with ordinance, health code and other similar violations are not eligible.

Prior Record of Convictions - PTI generally excludes defendants who have been previously convicted.

Parolees and Probationers Generally excluded without prosecutors consent and considered only after consultation with parole and probation departments.

Defendants Previously Diverted - Excludes defendants who have previously been granted a diversionary program or conditional discharge.

How Does One Apply for Pretrial Intervention?

Applications to PTI must be made no later than 28 days after indictment. There is a $75 non-refundable application fee. In certain instances, this fee may be waived. The application process includes an interview with the defendant by a staff member of the Criminal Division of the Superior Court. A written report is prepared detailing the decision for admittance or rejection into the PTI program. When a defendant is accepted into PTI on the recommendation of the Criminal Division, with the consent of the prosecutor and the defendant, the judge may postpone all further proceedings against the defendant for a period not to exceed 36 months.
     The applicant may appeal a rejection to the Presiding Judge of the Criminal Division within 10 days of the rejection.
http://www.njlaws.com/pretrial-intervention.htm

Preparation of Non Traditional Wills

IF YOU HAVE NO WILL:

  

 If you leave no Will or your Will is declared invalid because it was improperly prepared or is not admissible to probate:

* State law determines who gets assets, not you

* Additional expenses will be incurred and extra work will be required to qualify an administrator

* Judge determines who gets custody of your children

* Possible additional State inheritance taxes and Federal estate taxes

*  If you have no spouse or close relatives the State may take your property

 * The procedure to distribute assets becomes more complicated-and   the law makes no exceptions for persons in unusual need or for your own wishes.

*  It may also cause fights and lawsuits within your family

When loved ones are grieving and dealing with death, they shouldn’t be overwhelmed with Financial concerns.  Careful estate planning helps take care of that.

 THE FOLLOWING IS A SAMPLE OF A VARIETY OF CLAUSES AND ITEMS WHICH  YOUR ATTORNEY MAY INCLUDE IN A WILL:

1ST:  DEBTS AND TAXES

2ND: SPECIFIC BEQUESTS

3RD:  DISPOSITION TO SPOUSE

4TH: DISPOSITION OF REMAINDER OF ESTATE

5TH: CREATION OF TRUSTS FOR SPOUSE

6TH: CREATION OF TRUST FOR CHILDREN

7TH: OTHER BENEFICIARIES UNDER 21

8TH: EXECUTORS

9TH: TRUSTEES

10TH: GUARDIANS

11TH: SURETY OR BOND

12TH: POWERS 

13TH: AFTERBORN CHILDREN

14TH: PRINCIPAL AND INCOME

15TH: NO ASSIGNMENT OF BEQUESTS

16TH: GENDER

17TH: CONSTRUCTION OF WILL

18TH:  NO CONTEST CLAUSE

 A Will must not only be prepared within the legal requirements of the New Jersey Statutes but should also be prepared so it leaves no questions regarding your intentions.

WHY PERIODIC  REVIEW IS ESSENTIAL

 Even if you have an existing Will, there are many events that occur which may necessitate changes in your Will.  Some of these are:

     

* Marriage, death, birth, divorce or separation affecting either you or  anyone named in your Will

*Significant changes in the value of  your total assets or in any particular assets, which you own

     

* A change in your domicile

     

* Death or incapacity of a beneficiary, or death, incapacity or change in residence of a named executor, trustee or guardian of infants, or of one of the witnesses to the execution of the Will

*Annual changes in tax law

  

MAY I CHANGE MY WILL?

 Yes.  A Will may be modified, added to, or entirely changed at any time before your death provided you are mentally and physically competent and desire to change your Will.  You should consider revising your Will whenever there are changes in the size of your estate. For example, when your children are young, you may think it best to have a trust for them so they do not come into absolute ownership of  property until they are mature.  Beware, if you draw lines through items, erase or write over, or add notations to the original Will, it can be destroyed as a legal document.  Either a new Will should be legally prepared or a codicil signed to legally change  portions of the Will. 

SAVE MONEY

 Your estate will be subject to probate whether or not you have a Will and in most cases, a Will reduces the cost by eliminating the requirements of a bond.  With a well-drawn  Will, you may also reduce death taxes and other expenses.  Don’t pinch pennies now to the detriment of  your beneficiaries. We have attempted to briefly explain in this article some of the issues, techniques, and decisions involved in Wills, Estate Planning, and Administration of an Estate.  Because the matters covered are complicated and the Federal and New Jersey laws frequently change,  this article can only outline some of the many legal issues you should  consider.  

The proper preparation of a Will should involve a careful analysis of  the client’s assets, family and his/her desires.  

 Estate Planning is the process of examining what will happen to your property when you die and arranging for its distribution in such a manner as will accomplish your objectives. 

 The cost of a Will depends on the size and the complexity of the estate and the plans of the person who makes the Will.  

 A properly drawn Simple Will without Trust costs approximately $200.00 to $600.00. It is one of the most important documents you will ever sign, and may be one of the best bargains you will ever have.

Sale of house in a probate case

Pre sentence report in criminal case PSI prior to sentencing and recommendations

Presentence Report PSI

New Jersey Criminal Sentencing
Although the offense someone is charged with plays the biggest role in the judge’s determination of your sentence, there are numerous other factors to be considered. The majority of the information used in determining what type of sentence is appropriate for you is found in a Presentence Report. More info at http://www.njlaws.com/3-21-2.htm
 We provide our clients with a copy of the Presentence Report. After you read it carefully advise us in writing within 5 days of anything that is not accurate or needs correcting. The Judge will ask you on sentencing date are there any corrections or modifications.
 We also recommend our clients prepare a list of  (15) reasons why the judge should not give you the maximum penalties, fines or impose a jail sentence. At sentencing the judge will ask you "what do you want to tell the court”.
A presentence report is an investigative report provided to the judge that includes a wide array of information. The presentence investigation is typically done by a probation officer and may include the following:
• Criminal History
• Employment
• Family support
• Alcohol/Drug history
• Mental health evaluation
• Medical history
• Personal habits
• Finance history
Ref: NJ §2C:44-6
Arguably the most important piece of information on the presentence report is the court investigating officer’s recommendation. The officer will make their recommendation on the belief on the likelihood of your success on probation or whether they believe you would be best served by incarceration.
The judge is not required to follow the recommendation of the presentence report, though they will likely give the investigating officer’s professional opinion some consideration.

Power of Attorney in case of Disability

Power of Attorney- What to explain and discuss with the client

By Kenneth Vercammen, Esq of Edison, NJ
    The ABA GP Solo Division  published Ken Vercammen’s 3rd book “Wills and Estate Administration”. This is a chapter of the book. The book is available at
http://shop.americanbar.org/eBus/Store/ProductDetails.aspx?productId=224827061
 A Power of Attorney is a written document in which a competent adult individual (the "principal") appoints another competent adult individual (the "attorney-in-fact") to act on the principal's behalf. In general, an attorney-in-fact may perform any legal function or task, which the principal has a legal right to do for him/herself. You may wish to sign a Power of Attorney giving your spouse, children or partner the power to handle your affairs if you become ill or disabled.  More info at http://www.njlaws.com/power_of_attorney.htm
       An important part of lifetime planning is the Power of Attorney. Valid in all states, these documents give one or more persons the power to act on your behalf. The power may be limited to a particular activity (e.g., closing the sale of your home) or general in its application, empowering one or more persons to act on your behalf in a variety of situations. It may take effective immediately or only upon the occurrence of a future event (e.g., a determination that you are unable to act for yourself). The latter are "springing" Powers of Attorney. It may give temporary or continuous, permanent authority to act on your behalf. A power of attorney may be revoked, but most states require written notice of revocation to the person named to act for you. See
http://www.americanbar.org/groups/real_property_trust_estate/resources/estate_planning/power_of_attorney.html
Reasons to sign a Power of Attorney
A Power of Attorney allows your spouse or another person to administer your assets during your lifetime, either upon disability or now.  The lack of a properly prepared and executed Power of Attorney can cause extreme difficulties when an individual is stricken with severe illness or injury rendering him/her unable to make decisions or manage financial and medical affairs.
 More info at http://www.njlaws.com/power_of_attorney.html
In the absence of a Power of Attorney or other legal arrangement to distribute property if you become disabled, your family or partner cannot pay your bills or handle your assets. The result can be lengthy delays. 
The term "durable" in reference to a power of attorney means that the power remains in force for the lifetime of the principal, even if he/she becomes mentally incapacitated. A principal may cancel a power of attorney at any time for any reason. Powers granted on a power of attorney document can be very broad or very narrow in accordance with the needs of the principal. 

New Jersey has a detailed, expensive legal procedures, called Guardianships or conservatorships, to provide for appointment of a Guardian. These normally require lengthy, formal proceedings and are expensive in court. This means involvement of lawyers to prepare and file the necessary papers and doctors to provide medical testimony regarding the mental incapacity of the subject of the action.
The procedures also require the involvement of a temporary guardian to investigate, even intercede, in surrogate proceedings. This can be slow, costly, and very frustrating.   Advance preparation of the Power of Attorney could avoid the inconvenience and expense of guardianship proceedings. This needs to be done while the principal is competent, alert and aware of the consequences of his / her decision. Once a serious problem occurs, it is usually too late.  
The Power of Attorney can be effective immediately upon signing or only upon disability.
Most people who give a Power of Attorney to someone else do it with the thought that if they should become ill or incapacitated or if they should travel, the Power of Attorney will permit the holder of it to pay their bills and to handle all of their affairs for them as limited in the Power of Attorney.

Post Will instructions after signing the Will

 

Post Will Instructions to Clients
I send all my clients a Post Will letter to give them several important reminders regarding the clients Will and things related to it. I am doing this in order for them to have a permanent record and also that they may refer to this letter from time to time in the future in order to refresh the clients memory. Please be sure, therefore, to keep this letter with the clients copy of their Will. More info at http://www.njlaws.com/postwillinstructions.html

We have given the client the Original signed Will to take home. The client should advise the Executors where the original Will is going to be stored. Additionally, they should provide the Executor with our business card and instruct the Executor to contact us prior to going to the Surrogates Office or probating a Will. If they have a Living Will, please be sure to give a copy to their doctor.

If they ever want to discuss the Will with me, I will be happy to do this with the client at any time after scheduling an appointment.

I recommend that the client review the Will periodically in order to keep it up-to date regarding changes in their family, their property, their wishes, and the law. I suggest that approximately five (5) years from the present time, the client contact my office and schedule an appointment again so that we can review their Will together.

This periodic review program should not prevent the client from considering the making of a change in their Will at any earlier date. Changes should be made whenever the client believes such changes are necessary. A persons family, property and wishes may change over the years and for these and other reasons the client should re-examine their Will from time to time in order to make sure that it will carry out their present wishes.

I caution the client against making any marks upon their original Will because this can lead to a Will contest. If the client wants to make a change in their Will, they should contact my office and we will either make a Codicil (a short addition) to their Will or a new Will depending upon their needs and wishes.

Notice of Probate of Will NJ Court Rule 4:80-6

Notice of Probate of Will NJ Court Rule 4:80-6
Within 60 days after the date of the probate of a will, the Attorney for the Estate or the personal representative shall cause to be mailed to all beneficiaries under the will and to all persons designated by R. 4:80-1(a)(3), at their last known addresses, a notice in writing that the will has been probated, the place and date of probate, the name and address of the personal representative and a statement that a copy of the will shall be furnished upon request (many executors and administrators hire an attorney to handle the required notices).
Proof of mailing shall be filed with the Surrogate within 10 days thereof. If the names or addresses of any of those persons are not known, or cannot by reasonable inquiry be determined, then a notice of probate of the will shall be published in a newspaper of general circulation in the county naming or identifying those persons as having a possible interest in the probate estate.
If by the terms of the Will property is devoted to a present or future charitable use or purpose, like notice and a copy of the will shall be mailed to the Attorney General.
It is important to serve and file the notice of probate because it starts the clock ticking on limiting challenges to the Will by unhappy family members. If they wait too long, they will be time barred. More info at http://www.njlaws.com/notice_of_probate.htm

NJ Inheritance Tax rates

NJ Inheritance Tax RatesThe Transfer Inheritance Tax rates depend on the amount received and the relationship between the decedent and the beneficiary. No tax is imposed on class A beneficiaries (father, mother, grandparents, descendants, spouses, civil union partners, or domestic partners).
Class C beneficiaries (brother or sister of decedent; husband, wife, or widow(er) of a child of decedent; civil union partner or surviving civil union partner of a child of decedent) are taxed at 11%–16%, with the first $25,000 exempt.
Class D beneficiaries (not otherwise classified) are taxed at 15%–16%, with no tax on transfers having an aggregate value of less than $500.
       More info at More info at http://www.njlaws.com/inheritance_tax.html
     Charitable institutions are exempt from tax

NJ Estate Tax amounts

NJ Estate Tax for Estates over $675,000
Recommendation for Tax Planning now if husband and wife’s total assets including life insurance exceeds $675,000
   More info at http://www.njlaws.com/NJ-Estate-Tax.html
 A New Jersey estate tax return must be filed if the decedent's gross estate plus adjusted taxable gifts as determined in accordance with the provisions of the Internal Revenue Code exceeds $675,000 and the assets do not go to the spouse. It must be filed within nine months of the decedent's death.

 Even if there is no NJ Inheritance Tax there can be a NJ Estate Tax if the estate exceeds $675,000 and the beneficiaries are children or grand children.

Who Must File
  A New Jersey estate tax return must be filed if the decedent’s Gross Estate exceeds $675,000. There is a substantial tax that must be paid after the 2nd spouse dies on amounts over $675,000.  You can hire an attorney to set up Trusts to try to reduce taxes due. We charge a minimum fee of $600 for each trust within a Will. A separate stand alone Trust has a minumum fee for $2,500.
Various NJ Estate Tax Consequences
Taxable Amount of $1,000,000
Tax=$33,200

Taxable Amount of $2,000,000
Tax =$99,200
Taxable Amount of $3,000,000 Tax=$182,000
 Even if your net worth is well below the Federal threshold where the federal estate tax becomes an issue, the New Jersey Estate Tax may still be a problem. The New Jersey Estate Tax affects any person or married couple with net worth over $675,000. There is no exemption for assets you leave to your children; those assets are fully taxed. There is also no exemption for the value of your home and life insurance, so it is easy to hit the $675,000 threshold very quickly.
Estate of  $800,000
Your Federal Estate Tax:  0.00 
Your State Taxable Estate Value:  $740,000.00
Your Estimated State Estate Tax:  $22,799.60

 If Estate Value:  $900,000.00  Your State Taxable Estate Value:  $840,000.00 Your Estimated State Estate Tax:  $27,600.00  

If Estate Value:  $1,000,000.00  Your State Taxable Estate Value:  $940,000.00 Your Estimated State Estate Tax:  $33,200.00

 If  Estate Value:  $1,100,000.00  Your State Taxable Estate Value:  $1,040,000.00 Your Estimated State Estate Tax:  $38,800.00

 If Estate Value:  $1,200,000.00 Your State Taxable Estate Value:  $1,140,000.00 Your Estimated State Estate Tax:  $45,200.00 

If Estate Value:  $1,300,000.00  Your State Taxable Estate Value:  $1,240,000.00 Your Estimated State Estate Tax:  $51,600.00

Municipal Court Appeals

Municipal Court Appeals
 Municipal Court criminal convictions and Motor vehicle convictions can cost you.
 You may have to pay fines in court or receive points on your drivers license. An accumulation of too many points, or certain moving violations may require you to pay expensive surcharges to the N.J. Division of Motor Vehicles or have your license suspended. It is usually best to hire an experienced attorney to represent you for motor vehicle violations. The trial in a Municipal Court is held in front of a Municipal Court Judge, and no jury trial is permitted. The Judge is ordinarily selected by the Town Mayor and Council. The appointment sometimes is based upon input from the Police Chief, PBA and local political organization.
 If after your trial you are unhappy with the decision and the suspension is excessive, you should hire an experienced attorney for the appeal. There is only twenty days for your attorney to properly prepare the papers and appeal. On appeal, the Judge only reads a transcript and looks at exhibits. There is no new testimony and the appeal judge is bound by the fact finding below, according to State v Lutz 309 N.J. Super. 317 (App. Div. 1998). More info at http://www.njlaws.com/municipal_court_appeals.html
The following are some of the Court Rules you and your attorney must comply with.
Why Appeal? Consequences of a Criminal conviction

1 You will have a criminal record
2 You may go to Jail or Prison.
3. You will have to pay Fines and Court Costs.
4. You could be put on Probation for up to five years.
5. You must wait 3-5  years to expunge a first offense. 2C:52-3
6. In Drug Cases, a mandatory DEDR penalty of $500-$1,000, and lose your driver's license for 6 months - 2years.
7 When you are on Probation or Parole, you will have to submit to random drug and urine testing. If you violate Probation, you often go to jail.
8. You may be required to do Community Service.
9 You lose the presumption against incarceration in future cases. 2C:44-10 You must pay restitution if the court finds there is a victim who has suffered a loss and if the court finds that you are able or will be able in the future to pay restitution.
10. Future employers may not hire you because you have a criminal record. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty and may be barred from any future city, state, federal or school employment
11. If you are not a United States citizen or national, you may be removed/deported by virtue of your plea of guilty or prevented from citizenship.

2C:33-2.1 Loitering to Obtain or Distribute CDS drugs

2C:33-2.1 Loitering to Obtain or Distribute CDS drugs
Kenneth Vercammen's Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey.
Loitering to obtain or distribute CDS 2C:33-2.1.
"Public place" defined; Loitering to obtain or distribute CDS is a disorderly persons offense 1. a. As used in this section:
"Public place" means any place to which the public has access, including but not limited to a public street, road, thoroughfare, sidewalk, bridge, alley, plaza, park, recreation or shopping area, public transportation facility, vehicle used for public transportation, parking lot, public library or any other public building, structure or area.
More info at http://www.njlaws.com/loitering_to_obtain_or_distribute_cds.htm
b. A person, whether on foot or in a motor vehicle, commits a disorderly persons offense if (1) he wanders, remains or prowls in a public place with the purpose of unlawfully obtaining or distributing a controlled dangerous substance or controlled substance analog; and (2) engages in conduct that, under the circumstances, manifests a purpose to obtain or distribute a controlled dangerous substance or controlled substance analog.
c. Conduct that may, where warranted under the circumstances, be deemed adequate to manifest a purpose to obtain or distribute a controlled dangerous substance or controlled substance analog includes, but is not limited to, conduct such as the following:
(1) Repeatedly beckoning to or stopping pedestrians or motorists in a public place;
(2) Repeatedly passing objects to or receiving objects from pedestrians or motorists in a public place;
(3) Repeatedly circling in a public place in a motor vehicle and on one or more occasions passing any object to or receiving any object from a person in a public place.
d. The element of the offense described in paragraph (1) of subsection b. of this section may not be established solely by proof that the actor engaged in the conduct that is used to satisfy the element described in paragraph (2) of subsection b. of this section.

Leaving the scene of accident with property damage

39:4-129, 39:4-130 Leaving Scene of Accident and Failure to Report, Car Accident
    Kenneth Vercammen's Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey. There is mandatory 6 month loss of license for leaving the scene. Our goal as the attorney is to negotiate with the prosecutor to reduce down to a violation with no suspension.
39:4-129   Action in case of accident.
 39:4-129 . (a) The driver of any vehicle, knowingly involved in an accident resulting in injury or death to any person shall immediately stop the vehicle at the scene of the accident or as close thereto as possible but shall then forthwith return to and in every event shall remain at the scene until he has fulfilled the requirements of subsection (c) of this section.  Every such stop shall be made without obstructing traffic more than is necessary.  Any person who shall violate this subsection shall be fined not less than $2,500 nor more than $5,000, or be imprisoned for a period of 180 days, or both.  The term of imprisonment required by this subsection shall be imposed only if the accident resulted in death or injury to a person other than the driver convicted of violating this section.
More info at http://www.njlaws.com/leaving_the_scene.html
       In addition, any person convicted under this subsection shall forfeit his right to operate a motor vehicle over the highways of this State for a period of one year from the date of his conviction for the first offense and for a subsequent offense shall thereafter permanently forfeit his right to operate a motor vehicle over the highways of this State.

Improper use of Power of Attorney

http://www.njlaws.com/Fiduciary_Duties_Obligations_and_Liabilities.html
Breach of fiduciary

The New Jersey Supreme Court has described the elements of a claim for breach of fiduciary duty as follows:
The essence of a fiduciary relationship is that one party places trust and confidence in another who is in a dominant or superior position. A fiduciary relationship arises between two persons when one person is under a duty to act for or give advice for the benefit of another on matters within the scope of their relationship. Restatement (Second) of Torts§ 874 cmt. a (1979) . . . . The fiduciary’s obligations to the dependent party include a duty of loyalty and a duty to exercise reasonable skill and care. Restatement (Second) of Trusts §§ 170, 174 (1959). Accordingly, the fiduciary is liable for harm resulting from a breach of the duties imposed by the existence of such a relationship. Restatement (Second) of Torts § 874 (1979).
[McKelvey v. Pierce, 173 N.J. 26, 57 (2002) (quoting F.G. v. MacDonell, 150 N.J. 550, 563-64 (1997)).]
   Financial exploitation of older persons, including the systematic depletion of bank accounts or other resources for the benefit of the abuser, has been tagged the "crime of the 90s."' The number of financial exploitation cases will only continue to rise as the population continues to age. Despite the increase in financial abuse cases, law enforcement officials remain reluctant to pursue perpetrators of abuse, traditionally viewing the situation as a family matter best resolved by civil litigation.
 Because an agent owes a fiduciary duty to his or her principal, a cause of action for breach of that  fiduciary duty may redress a wide variety of aberrant conduct by an agent. An agent is required to act for the advancement of the interests of the principal. The agents may not serve or acquire any private interest of his or her own that is adverse to the interests of the principal without the principal's consent.  The duty of the agent to the principal is one of utmost good faith and loyalty. Furthermore, agents, as fiduciaries, are required to make full disclosure to their principals of all information material to a transaction. An agent that breaches his or her fiduciary duty may be liable in tort. All of the traditional tort damages are available, including punitive damages where conduct is wanton or willful. An agent who is dishonest may also forfeit his or her right to compensation for those duties.

  Conversion
 Conversion is the wrongful or unauthorized exercise of dominion or control over a chattel. A conversion action is a tort. The tort of conversion is "bottomed upon a tortious interference with possessory rights."
 Under the common law, an agent has a duty to account to his principal. An agent must keep and render accounts and, when called upon for an ac- counting, has the burden of proving that she or he properly disposed of funds that she or he is shown to have received for her or his principal. The relationship between a principal and an attorney-in-fact can be analogized to the relationship between a trust beneficiary and trustee. Thus, the agent bears the burden of proving that he or she has properly disposed of funds.
 The elements of a cause of action for breach of fiduciary duty are:
(1) Plaintiff and Defendant share a relationship whereby:
(a) Plaintiff reposes trust and confidence in Defendant, and
(b) Defendant undertakes such trust and assumes a duty to advise, counsel and/or protect Plaintiff;
(2) Defendant breaches its duties to Plaintiff; and
(3) Plaintiff suffers damages.
     The elements of a claim for breach of fiduciary duty are not fixed as the claim may arise from virtually any case where one party accepts the trust and assumes the duty to protect a weaker party.

Improper turn violation 39 4 123

39:4-123 Failure to make proper turn
     Penalties set forth at 39:4-203 Fine or imprisonment not
exceeding 15 days, or both
fines $50 $200 plus court costs and possible non renewal by insurance company
points
3 NJ MVC points 39:4-123 Improper right or left turn 3
Plus 3 car insurance points
More info at http://www.njlaws.com/39_4-123properright.htm

Fine ranging from $50-$200 or imprisonment not exceeding 15 days, or both. For information regarding points or surcharges contact the Motor Vehicle Commission. For information about car insurance eligibility and points contact your car insurance company or the New Jersey Department of Insurance.
Except as otherwise provided in this article, the driver of a vehicle intending to turn at an intersection shall do so as follows:
(a) Right turns. Both the approach for a right turn and a right turn shall be made as close as practicable to the right-hand curb or edge of the roadway.
(b) Left turns on two-way roadways. At any intersection where traffic is permitted to move in both directions on each roadway entering the intersection, an approach for a left turn shall be made in that portion of the right half of the roadway nearest the center line thereof and by passing to the right of such center line where it enters the intersection and after entering the intersection the left turn shall be made so as to leave the intersection to the right of the center line of the roadway being entered. Whenever practicable the left turn shall be made in that portion of the intersection to the left of the center of the intersection.
(c) Left turns on other than two-way roadways. At any intersection where traffic is restricted to one direction on one or more of the roadways, the driver of a vehicle intending to turn left at any such intersection shall approach the intersection in the extreme left-hand lane lawfully available to traffic moving in the direction of travel of such vehicle and after entering the intersection the left turn shall be made so as to leave the intersection, as nearly as practicable, in the left-hand lane lawfully available to traffic moving in such direction upon the roadway being entered.
39:4-123 Failure to Make Proper Right and Left Turns

Grounds for challenges to a Will

In NJ typically there is only 4 months to file a Superior Court complaint to object to a Will which is already filed with the Surrogate
See Rule 4:85-1. Complaint; Time for Filing
If a Will has been probated by the Surrogate's 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.
Commons grounds object to Will is undue influence.       

Undue Influence to challenge a Will or Power of Attorney       
  A grievance based upon undue influence may be sustained by showing that the beneficiary had a confidential relationship with the party who established the account. Accordingly, if the challenger can prove by a preponderance of the evidence that the survivor had a confidential relationship with the donor who established the account, there is a presumption of undue influence, which the surviving donee must rebut by clear and convincing evidence.

more info at njlaws.com

Evicting delinquent tenants who owe rent

LANDLORDS - EVICTING TENANTS FOR NON-PAYMENT OF RENT
                         By Kenneth A. Vercammen  Esq
 This article will briefly explore certain remedies and recommendations to landlords. Unlike big apartment complexes, many landlords in New Jersey do not have full time management companies handling the collection of rent. Yet all landlords should handle their payments as a business, just as big corporate landlords. More info at http://www.njlaws.com/landlords-eviciting_tenants_for_nonpayment.htm

WRITTEN LEASE
 A  written lease is recommended for all rentals even for a month to month. Your lease should specifically require that the tenant pay the landlord's attorney's fees if they fail to pay rent or breach the lease in any way. If a written lease does not provide for attorneys fees, the court cannot award attorneys fees. In addition, your lease should provide in writing for re-renting cost if the tenant breaches the lease. Many leases also provide for late fees. If you do not have a written lease, have your attorney draft one!

Eviction: NON-PAYMENT OF RENT
 If your tenant fails to pay and you want to evict the tenant, a Tenancy Summons plus an Eviction Complaint must be filed in the Superior Court's Special Civil Part, Tenancy Division.  The court-filing fee is was increased to $50 plus mileage. Different attorneys charge different fees depending upon the amount of work to be done. Your attorney can prepare the mandatory complaint and summons. Our minimum fee is $1,500, up front. Our consult fee is minimum $150.
 The Court Constable is required to personally serve the tenant with a copy of the complaint. The court clerk will fill out the date and time for hearing on the summons, which also will be served on the tenant.
 You and your attorney should appear on the date for hearing. If the tenant appears, parties sometimes work out a payment plan for rent with a stipulation of settlement and stay of eviction. The landlord and tenant usually agree if all rent is not paid according to the schedule, the court is directed to issue a warrant for possession.

FAILURE OF TENANT TO APPEAR
 If the tenant fails to appear by the second call, you can pay an additional fee for a warrant of removal. This is obtained at the Special Civil Part Clerk, Tenancy Section Office. After waiting three days, the constable is given the warrant to serve at the tenant's property. If the tenant still fails to move, arrangements can be made with the constable and locksmith to physically remove the tenants and change locks.