NJ Laws Directions to Ken Vercammen and Associates Ken Vercammens Resume Ken Vercammen articles

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E486: 1. New Expungement Law 2. 2016 Wills & Estate Planning

1. New Expungement Law permits petitions for Expungement of arrests in

shorter time periods.

2. 2016 update Wills and Estate Planning Seminar materials, By Kenneth

Vercammen

1. New Expungement Law permits petitions for Expungement of arrests

in shorter time periods.

This is an excellent law to help non-violent offenders.

This new law establishes new expungement procedures for records and

information pertaining to crimes and offenses, including procedures for

persons who are, or previously have been, successfully discharged from the

States special probation drug court program. It also provides shorter waiting

periods before certain records and information become expungeable.

You can now get expungements for both the crime and the disorderly

persons convictions.

The new law takes effect until April 18, 2016.

The time period for expunging a Municipal Court criminal charge may be

reduced to 3 years if you can show exception circumstances. Otherwise it

stays 5 years.

Regarding a person with a criminal conviction, that person would be

permitted to make an application with an expungement petition to the

Superior Court in the county in which the criminal conviction was adjudged.

That application could include additional, separate petitions seeking to

expunge no more than two other convictions for disorderly persons or petty

disorderly persons offenses. The application could only be filed after the

expiration of five years from the date of the persons most recent conviction,

payment of fine, satisfactory completion of probation or parole, or release

from incarceration, for the crime or for any disorderly persons or petty

disorderly persons offense, whichever is later (the waiting period under

current law for a criminal conviction expungement is ordinarily 10 years).

Alternatively, the court could grant an expungement on the application if less

than five years has expired from the payment of any fine but the five-year

waiting period is otherwise satisfied, and the court finds that the person

substantially complied with any payment plan for that fine or could not do so

due to compelling circumstances.

Regarding a person with a conviction for a disorderly persons or petty

disorderly persons offense, but no criminal conviction, that person would be

permitted to make an application with an expungement petition to the

Superior Court concerning that offense following a procedure similar to that

used for criminal convictions. The application, like an application

concerning a criminal conviction, could include additional, separate petitions

seeking to expunge no more than two other convictions for disorderly

persons or petty disorderly persons offenses. The application could only be

filed after the expiration of three years from the date of the persons most

recent conviction, payment of fine, satisfactory completion of probation or

parole, or release from incarceration for any disorderly persons or petty

disorderly persons offense, whichever is later (the waiting period on

convictions for such offenses under current law is five years). Alternatively,

the court could grant an expungement on the application if less than three

years has expired from the payment of any fine but the three-year waiting

period is otherwise satisfied, and the court finds that the person substantially

complied with any payment plan for that fine or could not do so due to

compelling circumstances.

Regarding a person with an arrest or charge that did not result in a

conviction or finding of guilt, whether the proceedings were dismissed, or

the person acquitted or discharged, upon a person presenting an application

for expungement:

(1) if the proceedings took place in Superior Court, the court, at the time

of dismissal, acquittal, or discharge, would order the expungement of all

records and information relating to the arrest or charge; or

(2) if the proceedings took place in municipal court, the municipal court

would provide the person with appropriate documentation to transmit to the

Superior Court to request an expungement, and the Superior Court, upon

receipt of the documentation with an expungement request would take action

to order the expungement of all records and information relating to the arrest

or charge. A person seeking such an expungement of municipal court

matters would not be charged an application fee for taking such action.

An expungement related to a dismissal, acquittal, or discharge without a

conviction or finding of guilt would not be available whenever the dismissal,

acquittal, or discharge resulted from a plea bargaining agreement involving

the conviction of other charges. However, this bar on such expungements

would no longer apply once the conviction connected to the plea bargain was

itself expunged.

If the person did not apply for an expungement related to a dismissal,

acquittal, or discharge at the time such action occurred, the person could, at

any time following the disposition of proceedings, present to the Superior

Court in the county in which the disposition occurred an application with a

duly verified petition, containing relevant details concerning the applicant

and the arrest or charge for which the expungement is sought. The person,

pursuing this after the fact expungement application, would also not be

charged an application fee.

A copy of any Superior Court order of expungement related to a

dismissal, acquittal, or discharge would be presented to the appropriate court

and the prosecutor. The prosecutor would then be responsible for promptly

distributing copies of the expungement order to appropriate agencies with

custody and control of the records specified in the order so that they may be

properly expunged.

Regarding a person who is, or was prior to the effective date of the law,

successfully discharged from the States special probation drug court

program, the law would permit the Superior Court that had sentenced the

person to the program to expunge all records and information relating to

prior arrests, detentions, convictions, and proceedings for any offense

enumerated in the Criminal Code, Title 2C of the New Jersey Statutes,

existing at the time of discharge from the program. However, the person

would not be eligible for such an expungement action if the persons records

include a conviction for any offense barred from expungement pursuant to

N.J.S.2C:52-2.

For a person who is successfully discharged on or after the effective date

of the law, the person would only be eligible to have all prior matters

expunged if the person was not convicted of any crime, disorderly persons

offense, or petty disorderly persons offense during the term of special

probation. For a person who was successfully discharged prior to the

effective date of the law, the person would only be eligible to have all

matters expunged that existed at the time of discharge from the program if

the person has not been convicted of any crime or offense since the persons

date of discharge.

The Superior Court would grant the person successfully discharged from

the special probation drug court program the relief of expungement, unless it

finds that the need for the availability of the records and information

outweighs the desirability of having the person freed from any disabilities

associated with their availability. The person would not be charged any fee

for such an expungement action.

Lastly, regarding the continued availability of any expunged records and

information, the law updates the statutory list of parties within the criminal

justice system that may still view such records and information. Along with

courts, county prosecutors, the Probation Division of the Superior Court, and

the Attorney General, the Pretrial Services Program making pretrial release

recommendations on certain persons undergoing the release determination

process set forth in sections 1 through 11 of P.L.2014, c.31 (C.2A:162-15 et

seq.) would also be able to examine expunged records and information.

As amended and reported, this law is identical to Assembly Law Nos.

206, 471, 1663, 2879, 3060, and 3108 (ACS/2R), as also amended and

reported by the committee. SENATE, No. 2663

More info on hiring an attorney for an expungement

at http://www.njlaws.com/expungement.html

2. 2016 update Wills and Estate Planning Seminar materials

By Kenneth Vercammen

1. Federal Estate Tax exemption increased to $5,450,000 in 2016 so no

Federal Estate Tax. However, New Jersey taxes estates over $675,000

2. Gifts permitted without Federal Estate & Gift tax remains at $14,000 per

person.

3. We recommend Self- Proving Wills since witnesses to Will often move or

pass away

4. Non-formal writings could be Wills under the Probate Law

5. Undue influence: Recent cases can void Will signed under suspicious

circumstances

6. NJ Inheritance tax

7. Power of Attorney

8. Federal Health Privacy Law (HIPAA)

9. Competency required to sign a Will or Power of Attorney

10 Organ donor facts

1. Federal Estate Tax exemption increased to $5,430,000 in 2015 so no

Federal Estate Tax. However, New Jersey taxes estates over $675,000.

New Jersey has an Estate Tax on amounts over $675,000. So, even if

no Federal Estate Tax due, the estate must still file a Federal Estate Tax

Return, plus NJ Estate Tax Return.

So, for an unmarried or widowed person with assets of $1,000,000, there is

No Federal Estate Taxes, but the Estimated State Estate Tax: $33,200.00

For an unmarried or widowed person with assets of $1,500,000, estimated NJ

Estate Tax is over $60,000.

The Federal Tax rate on estates over $5,340,000 was increased from 35% to

40%.

How to avoid NJ Estate Tax- hire an attorney to set up a personal

residence trust or irrevocable trust and have the assets taken out of your

name and put into a trust or given to children and grandchildren in the trust.

Minimum fees for trust are $3,000. This is probably not something a nonattorney

can do on their own. It is illegal for a non-attorney to provide legal

advice or prepare most legal documents.

2. Gifts permitted without Federal Estate & Gift tax remained at $14,000 per

person. However, the amount permitted for Medicaid transfers is zero.

3. We recommend Self- Proving Wills since witnesses often move or pass

away

An old New Jersey Probate law required one of the two witnesses to a

Will to travel and appear in the Surrogates office and sign an affidavit to

certify they were a witness. This often created problems when the witness

was deceased, moved away, or simply could not be located. Some witnesses

would require a $500 fee to simply sign a surrogate paper. My

Grandmothers Will was not self- proving, and the witness to Will extorted a

$500 fee.

The New Jersey Legislature later passed a law to create a type of Will

called a Self-Proving Will. In such a Will, the person for whom the Will is

made must sign. Then two witnesses sign. Then the attorney or notary must

sign; with certain statutory language to indicate the Will is self-proving.

Beware of online documents not prepared by an attorney

When done properly, the executor does not have to locate any

witnesses. This usually saves time and money. If your Will is not selfproving

or if you are unsure, schedule an appointment with an elder law

attorney. Some law offices ignore the revised law, and fail to prepare self

proving Wills. Do not use a law office that follows old methods and does not

do a self-proving Will.

4. NJ SENATE Law No. 708 made a number of substantial changes to the NJ

Probate Law.

Non-formal writings could be Wills under the Revised provisions governing

the administration of estates and trusts in New Jersey. So make sure you

have a Formal Will drafted by an estate attorney.

The law expanded situations where writings that are intended as Wills

would be allowed, but requires that the burden of proof on the proponent

would be by clear and convincing evidence. Possibly a Christmas card with

handwritten notes could be presented as a Will or Codicil.

To present a non-formal Will or writing requires an expensive Complaint

and Order to Show Cause to be filed in the Superior Court, and a hearing in

front of a Superior Court Judge.

Be careful; have a Will done properly by an experienced attorney.

Beware of the Elective share rights of a new spouse. Have a Prenuptial

Agreement if entering into a 2nd marriage

The elective share provisions of the present Code has still not been

changed yet. Currently, the new spouse who is not given money in a Will

can challenge the terms of the Will. This is called electing against the Will

by a spouse. A spouse could receive up to 1/3 of the estate, even if only

married for 2 weeks. The spouse must file a Caveat or lawsuit in Superior

Court. We suggest a formal prenuptial agreement in 2nd marriage situations.

A Testator now means both male and female individuals, removing

the term Testatrix. Will forms that say executrix should not be used.

The law provides a statute of limitations with respect to creditor claims

against a decedents estate. There is no longer a need to publish a Notice

Limiting Creditors.

5. NJ Courts affirmed a Will could be voided if signed under suspicious

circumstances

When there is a confidential relationship coupled with suspicious

circumstances, undue influence is presumed and the burden of proof shifts to

the Will proponent to overcome the presumption.

If there is undue influence in making of Will and transfer by Deed of a

house by persons in Confidential relationship, this could subject those

persons to punitive damages in some instances, plus voiding of the Will.

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. See Estate of DeFrank, 433 N.J. Super. 258, (App.

Div. 2013) 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.

Although perhaps difficult to define, the concept encompasses all

relationships whether legal, natural or conventional in their origin, in which

confidence is naturally inspired, or, in fact, reasonably exists. Pascale v.

Pascale, 113 N.J. 20, 34 (1988) (internal citation omitted). And while family

ties alone may not qualify, parent-child relationships have been found to be

among the most typical of confidential relationships. DeFrank, supra, slip

op. at 13 (citing Ostlund, supra, 391N.J. Super. at 401).

In the context of inter vivos gifts, a presumption of undue influence

arises when the contestant proves that the donee dominated the will of the

donor or when a confidential relationship exists between the donor and

done. Pascale, supra, 113 N.J. at 30 (internal citations omitted). Where

parties enjoy a relationship in which confidence is naturally inspired or

reasonably exists, the person who has gained an advantage due to that

confidence has the burden of proving that no undue influence was used to

gain that advantage, In re Estate of Penna,322 N.J. Super. 417, 423 (App.

Div. 1999), and the donee has the burden of showing by clear and

convincing evidence not only that no deception was practiced therein, no

undue influence used, and that all was fair, open and voluntary, but that it

was well understood. In re Estate of Mosery, 349 N.J. Super. 515, 522-23

(App. Div. 2002) (citing In re Dodge, 50 N.J. 192, 227 (1967)).

The person receiving gifts and greater benefit had a burden to show no

deception was practiced and that all of the transactions were fair, open and

voluntary, and that they were well understood.

Wills should be prepared without undue influence. No one other than the

person who is signing the Will should be in the room. We request the person

who wants the Will to fill out the interview form themselves.

6. NJ Inheritance tax

The NJ Inheritance Tax Return instructions and NJ Estate Tax Forms

were revised. Dont use old forms. Even if no inheritance tax due, a Tax

Waiver on a house must still be obtained and filed if the house was not coowned

by the spouse.

7. Power of Attorney- Do not use a form purchased online.

A Power of Attorney should contain reference to the NJ statute requiring

banks to honor the Power of Attorney. Section 2 of P.L. 1991, c. 95 (c.

46:2B-11).

8. Federal Health Privacy Law (HIPAA)- Have a new Living Will prepared

A federal regulation known as the Health Insurance Portability and

Accountability Act (HIPAA) was adopted regarding disclosure of

individually identifiable health information. This necessitated the addition of

a special release and consent authority to all healthcare providers before

medical information will be released to agents and interested persons of the

patients.

The effects of HIPAA are far reaching, and can render previously

executed estate planning documents useless, without properly executed

amendments, specifically addressing these issues.

Any previously executed Powers of Attorney, Living Wills, Revocable

Living Trusts, and certainly all Medical Directives now require HIPAA

amendments. After you sign the Living Will in your attorneys office,

provide a copy to your doctor and family.

Powers of attorneys and Living Wills should be updated to reference

this new law. More information on the HIPAA law

at http://www.njlaws.com/hipaa.htm

9. Competency required to sign a Will or Power of Attorney

Attorneys cannot prepare a Power of Attorney, Will or any other legal

document unless a person is mentally competent. If someone is unable to

come into our office, we require the client or clients family to have the

treating Doctor sign the Doctor Certification of Patient Capacity to Sign

Legal Documents It is the client or clients familys responsibility to contact

the doctor, obtain the signed Certification at the clients expense, and then

provide the law office with the original signed Certification. A Law Office

cannot accept phone calls stating someone is competent. Therefore, it is wise

do have your documents drafted while you can drive and are healthy.

10. Organ Donor Facts

Our Living Wills have been revised to include an Organ donor

selection. Please also sign an organ donor card and register to be an organ

donor, even eyes, with https://www.njsharingnetwork.org. Ken V signed an

organ donor card and also is a volunteer in a medical study using donated

knee cartilage to fix knee damage from 40 years of competitive running and

triathlon, Tae Kwon Do and other sports.

Who can be a donor? People of all ages and medical histories should

consider themselves potential donors. Your medical condition at the time of

death will determine what organs and tissue can be donated.

Does my religion support organ and tissue donation? Every major

religion in the United States supports organ and tissue donation as one of the

highest expressions of compassion and generosity.

Is there a cost to be an organ, eye and tissue donor? There is no cost

to the donors family or estate for donation. The donor family pays only for

medical expenses before death and costs associated with funeral

arrangements.

Does my social and/or financial status play any part in whether or

not I will receive an organ if I ever need one? No. When you are on the

transplant waiting list for a donor organ, what really counts is the severity of

your illness, body size, tissue type, blood type and other important medical

information.

Why should I register to be an organ and tissue donor? Organ andtissue transplants offer patients a new chance at healthy, productive, and

normal lives and return them to their families, friends and communities. To

learn more or to register to become an organ and tissue donor,

visit www.NJSharingNetwork.org. Also contact your attorney to have a

Living Will/ Advance Directive prepared.

http://www.njlaws.com/EstatePlanning.htm

NJ Estate NJ Estate Tax Due

$700,000 $9,250

750,000 20,399

800,000 22,799

850,000 25,199

900,000 27,600

950,000 30,400

1,000,000 33,200

1,050,000 36,000

1,100,000 38,800

1,150,000 42,000

1,200,000 45,200

1,250,000 48,400

1,300,000 51,600

1,350,000 54,800

1,400,000 58,000

1,450,000 61,200

1,500,000 64,400

1,550,000 67,600

1,600,000 70,800

1,650,000 74,400

1,700,000 78,000

1,750,000 81,600

1,800,000 85,200

1,850,000 88,800

1,900,000 92,400

1,950,000 96,000

2,000,000 99,600

The Federal Estate Tax applicable exclusion amount is

$1,500,000 (2004-2005),

$2,000,000 (2006-2008),

$3,500,000 (2009),

$5,000,000 (2010-2011),

$5,250,000 (2013), $5,340,000 (2014),

$5,430,000 (2015),

and $5,450,000 (2016)

Beginning January 1, 2011, estates of decedents survived by a spouse may

elect to pass any of the decedents unused exclusion to the surviving spouse.

This election is made on a timely filed estate tax return for the decedent with

a surviving spouse. Note that simplified valuation provisions apply for those

estates without a filing requirement absent the portability election. See the

Instructions to Form 706 for additional information.

Exclusions

* The annual exclusion for gifts is

* $11,000 (2004-2005),

* $12,000 (2006-2008),

* $13,000 ( 2009-2012)

* and $14,000 (2013-2016).

The applicable exclusion amount for gifts is

$1,000,000 (2010),

$5,000,000 (2011),

$5,120,000 (2012),

$5,250,000 (2013),

$5,340,000 (2014),

$5,430,000 (2015),

and $5,450,000 (2016).

More information on Wills and Probate at

http://njwillsprobatelaw.com and

www.CentralJerseyElderLaw.com

Remember to order your Super Bowl sandwiches from Craigs Deli, II, 2045

Woodbridge Avenue, Edison, NJ. Phone: 732-287-9299

If you are happy with our services, please be sure to:

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Editorial Assistance Provided by Juhi Duggirala. Ms. Duggirala is

participating in Ken Vercammens Fall Internship Program and

currently attends Kean University.

Editors Note and Disclaimer:

All materials Copyright 2015. You may pass along the information

on the NJ Laws Newsletter and website, provided the name and

address of the Law Office is included.

KENNETH VERCAMMEN & ASSOCIATES, PC

ATTORNEY AT LAW

2053 Woodbridge Ave.

Edison, NJ 08817

(Phone) 732-572-0500

(Fax) 732-572-0030

Website: www.njlaws.com

   
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Kenneth Vercammen was the Middlesex County Bar Municipal Court Attorney of the Year

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Attorneys are not permitted to provide legal advice by email.

Kenneth Vercammens Law office represents individuals charged with criminal, drug offenses, and serious traffic violations throughout New Jersey. Our office helps people with traffic/ municipal court tickets including drivers charged with Driving While Intoxicated, Refusal and Driving While Suspended.

Kenneth Vercammen was the NJ State Bar Municipal Court Attorney of the Year and past president of the Middlesex County Municipal Prosecutors Association.

Criminal and Motor vehicle violations can cost you. You will 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. DMV [Division of Motor Vehicles] or have your license suspended. Dont give up! The Law Office of Kenneth Vercammen can provide experienced attorney representation for criminal motor vehicle violations.

When your job or drivers license is in jeopardy or you are facing thousands of dollars in fines, DMV surcharges and car insurance increases, you need excellent legal representation. The least expensive attorney is not always the answer. Schedule an appointment if you need experienced legal representation in a traffic/municipal court matter.

Our website www.KennethVercammen.com provides information on traffic offenses we can be retained to represent people. Our website also provides details on jail terms for traffic violations and car insurance eligibility points. Car insurance companies increase rates or drop customers based on moving violations.

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Kenneth Vercammen & Associates, P.C.
at 732-572-0500
for an appointment.

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Ken Vercammen articles

Ken Vercammens Resume Directions to Ken Vercammen and Associates



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