March
6, 2008
In This Issue
_______________
1. Where mother neglected and abandoned child, she could
not inherit boy's $1 million estate.
2. DWI defendant entitled to step down based on uncounseled
prior plea.
3. Police Can Use An Electronic Tracking Devise to Trace
a Stolen Cell Phone.
4. New Law effective March 1 Cell phone law.
5. Events this week: March 7 Friendly Sons of St. Patrick
Friday.
6. Intestacy [Someone died and no Will].
--------------------------------------------------------------------------------
Greetings,
1. Where mother neglected and abandoned child, she could
not inherit boy's $1 million estate.
New Jersey Division of Youth and Family Services v. M.W.
// In the Matter of the Guardianship of R.W., F.W. and
T.H. A-5756-05T4; A-6485-05T4 02-26-08
DYFS filed an action to terminate parental rights of two
children against mother who abused and abandoned them.
A third child also abused and neglected by the mother
died as the result of abuse by the person to whom mother
abandoned her children.
Mother sued DYFS for wrongful death of third child and
received $1 million settlement from the State. Trial court
permitted amendment of guardianship action to include
third child and terminated mother's parental rights to
all three children. Held in these unusual circumstances
that parental rights to child could be terminated posthumously
on principle that equity will not permit wrongdoer to
profit by wrongdoing.
2. DWI defendant entitled to step down based on uncounseled
prior plea. State v Conroy __ NJ Super. __ (App Div decided
January 9, 2008) A-2384-06T5.
The question presented is whether a defendant, who has
had three prior convictions for DWI, was entitled to the
benefit of the ten-year step-down provision of N.J.S.A.
39:4-50(a)(3) on a fourth conviction, where the first
conviction was entered by way of an uncounseled plea.
The court answered the question in the affirmative, determining
that when defendant appeared before the Law Division he
stood as a third offender, not a fourth offender, for
the limited purpose of the trial court imposing a jail
sentence under the enhanced sentencing provision of the
DWI statute. Laurick continued.
3. Police Can Use An Electronic Tracking Devise to Trace
a Stolen Cell Phone. State v. Laboo 396 NJ Super. 97 (App.
Div. 2007).
Three individual committed a string of armed robberies
over the course of a one-hour period, taking items that
included two cell phones. Approximately thirty hours after
the last robbery, police used a tracking device to track
one of the stolen cell phones to a three-family home located
in a high crime area. Three officers entered the building
and used a handheld tracking device to determine the exact
apartment. An officer knocked on the apartment door and
announced that he was a police officer. The officer then
heard a young female yelling and a man's voice saying
"shut up, shut up, 5-0," and scurrying inside
the apartment. Without obtaining a warrant, the officers
forcibly entered the apartment, wherein they found evidence
from the robberies.
The Court reversed the law division's order suppressing
the evidence. The search was justified because the exigent
circumstances, although police-created, arose as a result
of reasonable investigative conduct. The Court held that
the police were not required to secure a warrant because
a delay presented a real potential danger to the officers
and public, under the circumstances.
4. New Law effective March 1 Cell phone law.
Makes it a primary offense for motorists to talk on or
text message with hand-held wireless telephone or electronic
communication device while driving. S-1099/A-4146.
5. Events this week:
March 7: Friendly Sons of St. Patrick Friday This year's
dinner will be at the DoubleTree Hotel in Somerset, NJ
The dinner will be a black tie, men only. Tickets will
be $100.00 and made payable to Friendly Sons of St. Patrick.
Call Kenneth Vercammen if interested.
March 9, Sunday: Newark Distance Classic 20K. The race
will start at 9:30 am and the application is available
here.
Ken Vercammen looking for a ride from North Brunswick/
Edison area to Newark Sunday March 9 to run with the team
Please let me know as always, to include your name on
a team, you need to have be a USATF (2008) member. If
you haven't already, please renew your USATF membership
for 2008 here (RVRR is still Club # 202) before putting
a toe on the line.
March 9: St Patrick Parade - Woodbridge 1pm, followed
by corned beef and beer at Hungarian club.
6. Intestacy [Someone died and no Will].
Intestacy is the condition of the estate of a person who
dies owning property greater than the sum of his or her
enforceable debts and funeral expenses without having
made a valid will or other binding declaration; alternatively
where such a will or declaration has been made, but only
applies to part of the estate, the remaining estate forms
the "Intestate Estate". Intestacy law, also
referred to as the law of descent and distribution or
intestate succession statutes, refers to the body of common
law that determines who is entitled to the property from
the estate under the rules of inheritance. See http://en.wikipedia.org/wiki/Intestacy
INTESTACY
According to the Bergen County Surrogate, It is estimated
that almost one third of the persons who die this year,
will die without a will. See http://www.co.bergen.nj.us/Surrogate/BCSC_Intest.htm
The estate of every Bergen County resident must be settled
with the County Surrogate's Court unless the deceased
owned no assets individually in New Jersey. Except in
that limited circumstance, an estate must be presented
to the County Surrogate before disbursement of the deceased's
assets can occur. This estate settlement requirement applies
whether the person died with or without a will.
The estate of a person who dies without a will is called
an "intestate" estate. The Administrator's responsibilities
include notifying the deceased's next of kin of his/her
death, assembling the estate's assets and disbursing those
assets according to law. The applicant need not be an
attorney. In fact, most applicants complete the entire
Surrogate's Court process without the need for an attorney.
However, if you feel more comfortable bringing an attorney
to the Surrogate's Court, you may certainly do so.
To apply to be the Administrator of an intestate estate,
a person must bring the following to the County Surrogate's
Court: (1) The original death certificate with raised
seal; (2) An estimate of the gross value (but not an item-by-item
description) of the estate covering all real estate and
non-real estate (personal) assets; (3) The complete names
and addresses of the deceased's next of kin; (4) A blank
New Jersey check or cash for fees-the average fees, excluding
bonding costs, are $150-$250); (5) A formal, written Renunciation
of the right to serve as the estate's Administrator signed
(in the presence of a Notary Public) by every person,
if any, who has statutory preference over the applicant
to serve as the estate's Administrator.
As a matter of law, the family members of the deceased
have the first right to serve as the Administrator, in
the following order of preference: spouse, children, parents,
brothers and sisters. Should no family member seek appointment,
then a creditor or anyone else may do so. A person who
renounces the right to serve as Administrator may do so
without disclaiming the right to receive any of the deceased's
assets. (In contrast, by having a will, a person can choose
the individual(s) he/she wishes to take charge and distribute
his/her estate's assets (the "Executor(s)").
Source: See http://www.co.bergen.nj.us/Surrogate/BCSC_Intest.htm
Once the above-described five items have been received,
the Surrogate will appoint the applicant as the Administrator
of the intestate estate. In most cases, the Administrator
must be bonded until the estate has been properly assembled
and distributed. This bonding fee is in addition to the
$150-250 in average fees paid by the person seeking to
be approved as Administrator. Bonding is required to protect
the creditors and beneficiaries of the estate from the
possibility that the Administrator will misuse his/her
authority to their financial detriment.
There are, however, exceptions to the bonding requirement
for intestate estates. If the deceased has a surviving
spouse and no surviving parent or child, the surviving
spouse need not post a bond. If the deceased left a surviving
spouse and a surviving parent or child, then there will
be no bond required of the surviving spouse for the first
$50,000 of the estate and one-half of the remainder. Otherwise,
the cost of bonding is fixed on the value of the estate.
Bond premiums are currently $100 per year, if the estate
is worth $18,000 or less; $525 per year, if the estate
is worth $100,000 or less. (By way of comparison, a person
can have a simple Will drafted by an attorney for $250-$350
and the will can state that the person taking charge of
the estate's assets, the "Executor", shall serve
without any bond.)
After the Administrator has been appointed and bonded,
the Surrogate's Court will then issue Surrogate's Certificates
(also known as Letters of Administration) that are used
to assemble and transfer the intestate's assets. It is
recommended that you order several copies of these Certificates,
especially if the assets are being held by several banks,
brokerage firms, pension plans and insurance companies.
They will also be needed to sell or transfer all real
estate assets. Along with the Certificates, a General
Information brochure regarding the New Jersey Inheritance
Tax is sent by the Surrogate's Court to the Administrator
by mail within 5-7 business days of his/her appointment.
Administration of the estate cannot be first completed
until several additional steps are taken. First, the Administrator
must gather the assets, pay the just debts and taxes,
and then distribute the balance of the estate's assets
in accordance with the law. Second, once all assets of
the estate have been disbursed, the Administrator must
have each recipient sign a Refunding Bond. The Administrator
should also have the recipient(s) sign a Release at the
same time. The Surrogate's Court provides, without charge,
a form combining a Release and Refunding Bond. The executed
Release and Refunding Bond (signed by the recipient in
the presence of a Notary Public) should then be filed
with the Surrogate's Court at a cost of $10.00 per Bond.
Source:
See http://www.co.bergen.nj.us/Surrogate/BCSC_Intest.htm
The laws of the State of New Jersey provide for the
assets of the intestate estate to be distributed to the
next of kin by "intestate succession" as follows:
I. If you die leaving a spouse but no children, grandchildren
or parents, the surviving spouse receives all.
II. If you die leaving a spouse and children who are also
the children of the spouse, the spouse receives the first
$50,000 plus one-half of the balance of the estate. The
children receive the other one-half of the balance divided
equally amongst them. If one of your children dies leaving
children then your grandchildren take their deceased's
parent's share. However, if all of your children have
died before you then all of your grandchildren will share
equally.
III. If you die leaving a spouse and children who are
not also the children of that spouse, the spouse receives
one-half, the children receive one-half divided equally
and, if applicable, the grandchildren take their deceased
parent's share unless all the children are deceased. Should
that occur, all the grandchildren share equally.
IV. If you die leaving children but no spouse, the children
receive all divided equally among them. If there are grandchildren,
they take their deceased parent's share, unless all the
children are deceased. In that event, all the grandchildren
share equally.
V. If you die leaving a spouse but no children or grandchildren,
and if your mother or father is still living, your spouse
receives the first $50,000 of your estate plus one-half
of the balance and your parents (or parent, if only one
survives you) receives the remainder.
VI. If you die leaving no spouse, no children, no grandchildren,
no grandchildren and one or both of you parents survive
you, the surviving parent or parents take all divided
equally. If no parent survives, then your surviving brothers
and sisters receive all divided equally.
VII. If you die leaving no surviving spouse, children,
grandchildren, parents, brothers or sisters, then the
estate will be divided equally among those people surviving
you in the closest degree of kinship (starting with nieces
and nephews) until an heir is found if possible.
VIII. If you die leaving no surviving next of kin without
a Will, your estate assets escheat to the State of New
Jersey.
In a related manner, in addition to the appointment of
an Administrator for an intestate estate, if the count
resident dies leaving a child under 18 years of age and
there is no other legal guardian for that minor child,
then the Bergen County Surrogate must appoint that minor
child's guardian. The procedure for this appointment is
similar to the application and bonding process for an
Administrator in the sense that the law gives certain
family members priority to serve as guardian of the deceased's
minor child, while allowing those lower on the priority
ladder to serve as long as the appropriate written renunciations
have been received by the Surrogate. (In contrast, if
the person who died had a will, the deceased could have
designated the guardian(s) of his/her minor child in the
will and this designation would have been binding upon
the Surrogate and all others.
Source:
See http://www.co.bergen.nj.us/Surrogate/BCSC_Intest.htm
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