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What to do When the Executor Does Not do Their Job- Hire Att

What to Do when the Executor does not do their job- Hire attorney to file Complaint to Remove the Executor of an Estate

By Kenneth Vercammen Esq. of Edison, NJ

Under New Jersey Law, the person selected as an executor of a Will has numerous legal responsibilities following the death of the person who signed the Will. Primarily, they have a duty to probate the Will, liquidate assets, pay bills and taxes, file all necessary court and tax returns, and then distribute the assets to beneficiaries.

In New Jersey, the court and Surrogate do not supervise how an executor or administrator handles the estate. An Executor occasionally fails to timely carry out their duties. They may fail to file tax returns, fail to keep records, misappropriate funds or ignore instructions under the Will. If a beneficiary is not satisfied with the handling of the estate, they can have an attorney file a Complaint in the Superior Court to compel accounting, remove the executor, compel filing of tax returns and seek other relief.

The New Probate Statute of NJ made a number of substantial changes to the provisions governing the administration of estates and trusts in New Jersey.

Under the United States Supreme Court Case, Tulsa Professional Collection Services, Inc., v. Joanne Pope, Executrix of the Estate of H. Everett Pope, Jr., Deceased, 108 S.CT. 1340 the Personal Representative in every estate is personally responsible to provide actual notice to all known or readily ascertainable creditors of the decedent. This means that is the executors responsibility to diligently search for any readily ascertainable creditors.

As with a litigated court matter, trials can become expensive. Competent elder law/probate attorney may charge an hourly rate of $300-$450 per hour, with a retainer of $4000 needed. Attorneys will require the full retainer to be paid in full up front. We charge a consult fee of $200 to discuss the case.

In lieu of a Formal Accounting the beneficiaries will usually be requested to sign a Release and Refunding bond. If a beneficiary has evidence of misappropriation, they should ask the executor for an informal accounting prior to signing the Release and Refunding bond.

COMPLAINT FOR ACCOUNTING & REMOVAL OF EXECUTOR

A Complaint for Accounting is filed in the Superior Court Probate Part to request on accounting, removal of the current executor and selection of a new person to administer and wrap up the estate. See Rule 4:87-1

A signed certification of one or more beneficiaries is needed. In addition, an Order to Show Cause is prepared by the attorney. The Order to Show Cause is submitted to be signed by the Judge directing the executor to file a written answer to the Complaint, as well as appear before the court at a specific date and time. The NJ Judiciary website has a model form Order to Show Cause.

As with a litigated court matter, trials can become expensive. Competent elder law/probate attorney may charge an hourly rate of $275-$400 per hour, with a minimum retainer of $3,000 needed. Most attorneys require the retainer to be paid in full up front.

The plaintiff can request the following:

(1) That the named executor be ordered to provide an accounting of the estate to plaintiff.

(2) Defendant Executor be ordered to provide an accounting for all assets of decedent dated five years prior to death that defendant may have administrated through a Power of Attorney.

(3) Payment of plaintiffs attorneys fees and costs of suit for the action.

(4) Declaring a constructive trust of the assets of the decedent for the benefit of the plaintiff and the estate.

(5) That the executor be removed as the executor/administrator of the estate and that the plaintiff be named as Administrator C.T.A. or administrator of the estate.

(6) That the executor be barred from spending any estate funds, be barred from paying any bills, be barred from taking a commission, be barred from writing checks, be barred from acting on behalf of the estate, except as specifically authorized by Superior Court Order or written consent by the plaintiff. The statue on removing the Executor for cause is NJSA 3B:14-21.

OBJECT TO EXECUTORS COMMISSIONS

Under NJSA 3B:18-1 et seq., Executors, administrators and other fiduciaries are entitled to receive a commission on both the principal of the estate, and the income earned by assets.

However, if you have evidence that the executor has breached their fiduciary duties or violated a law, the Superior Court accounting complaint can request that the commissions be reduced or eliminated.

COMPEL THE SALE OF REAL ESTATE AND OTHER PROPERTY

Occasionally, a family member is living in a home owned by the decedent. To keep family harmony, often this family member is permitted to remain in the home temporarily. However, it may later become clear that the resident has no desire on moving, and the executor has neither an intention to make them move nor to sell the house. The remedy a beneficiary has can be to have the attorney include in the Superior Court complaint a count to

1) remove the executor

2) remove the tenant and make them pay rent to the estate for the time they used the real property since death without paying rent

3) compel the appraisal of the home and, thereafter, the sale of the property

4) make the executor reimburse the estate for the neglect or waste of assets.

Removal for cause of Executor

NJSA 3B:14-21 The court may remove a fiduciary from office when:



a. After due notice of an order or judgment of the court so directing, he neglects or refuses, within the time fixed by the court, to file an inventory, render an account or give security or additional security;



b. After due notice of any other order or judgment of the court made underits proper authority, he neglects or refuses to perform or obey the order orjudgment within the time fixed by the court; or



c. He has embezzled, wasted or misapplied any part of the estate committedto his custody, or has abused the trust and confidence reposed in him; or



d. He has removed from the state or does not reside therein and neglects orrefuses to proceed with the administration of the estate and perform the dutiesand trust devolving upon him;or



e. He is of unsound mind or mentally incapacitated for the transaction of business;or



f. One of two or more fiduciaries has neglected or refused to perform his duties or to join with the other fiduciary or fiduciaries in the administrationof the estate committed to their care whereby the proper administration andsettlement of the estate is or may be hindered or prevented.

In addition, a court may invoke its equity powers to remove [an executor]. In re Duke, 305 N.J. Super. 408, 438 (Ch. Div. 1995) (citing In re Koretzky, 8 N.J. 506, 530 (1951)). However, a judge should be particularly reluctant to remove a fiduciary chosen by the decedent, Connelly v. Weisfeld, 142 N.J. Eq. 406, 411 (E. & A. 1948), and the foremost concern when such an act is contemplated should be whether the executors continued service would be detrimental to the estate. Wolosoff v. CSI Liquidating Trust, 205 N.J. Super. 349, 360 (App. Div. 1985)

The critical question is whether the circumstances are such that the continuance . . . in office would be detrimental to the [estate] and require the court to grant relief. Wolosoff, supra, 205 N.J. Super. at 360. Thus, mere friction between an executor and beneficiaries is not a ground for removal unless the relationship is likely to interfere materially with the administration of the estate. Ibid. Estate litigation is often acrimonious, but the removal of an executor appointed by the decedent is generally to be avoided. Connelly, supra, 142 N.J. Eq. at 411.

Generally, in order for friction or hostility between the beneficiary and trustee to form the basis for removal, there must be a demonstration that the relationship will interfere materially with the administration of the trust or is likely to do so. Wolosoff, supra, 205 N.J. Super. at 360-61. There also must be proof that the friction or hostility arose out of the trustees behavior. Ibid.; Starr v. Wiley, 89 N.J. Eq. 79, 90 (Ch. 1918)

Duty of Executor in Probate & Estate Administration

1. Conduct a thorough search of the decedents personal papers and effects for any evidence which might point you in the direction of a potential creditor;

2. Carefully examine the decedents checkbook and check register for recurring payments, as these may indicate an existing debt;

3. Contact the issuer of each credit card that the decedent had in his/her possession at the time of his/ her death;

4. Contact all parties who provided medical care, treatment, or assistance to the decedent prior to his/her death;

Your attorney will not be able to file the NJ inheritance tax return until it is clear as to the amounts of the medical bills and other expenses. Medical expenses can be deducted in the inheritance tax.

Under United States Supreme Court Case, Tulsa Professional Collection Services, Inc., v. Joanne Pope, Executrix of the Estate of H. Everett Pope, Jr., Deceased, the Personal Representative in every estate is personally responsible to provide actual notice to all known or readily ascertainable creditors of the decedent. This means that is your responsibility to diligently search for any readily ascertainable creditors.

Other duties/ Executor to Do

Bring Will to Surrogate

Apply to Federal Tax ID #

Set up Estate Account at bank (pay all bills from estate account)

Pay Bills

Notice of Probate to Beneficiaries (Attorney can handle)

If charity, notice to Atty General (Attorney can handle)

File notice of Probate with Surrogate (Attorney can handle)

File first Federal and State Income Tax Return [CPA- ex Marc Kane]

Prepare Inheritance Tax Return and obtain Tax Waivers (Attorney can handle)

File waivers within 8 months upon receipt (Attorney can handle)

Prepare Informal Accounting

Prepare Release and Refunding Bond (Attorney can handle)

Obtain Child Support Judgment clearance (Attorney will handle)

Lets review the major duties involved-

In General. The executors job is to (1) administer the estate--i.e., collect and manage assets, file tax returns and pay taxes and debts--and (2) distribute any assets or make any distributions of bequests, whether personal or charitable in nature, as the deceased directed (under the provisions of the Will). Lets take a look at some of the specific steps involved and what these responsibilities can mean. Chronological order of the various duties may vary.

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

An employer identification number (EIN) should be obtained for the estate; this number must be included on all returns and other tax documents having to do with the estate. The executor should also file a written notice with the IRS that he/she is serving as the fiduciary of the estate. This gives the executor the authority to deal with the IRS on the estates behalf.

Pay the Debts. The claims of the estates creditors must be paid. Sometimes a claim must be litigated to determine if it is valid. Any estate administration expenses, such as attorneys, accountants and appraisers fees, must also be paid.

Manage the Estate. The executor takes legal title to the assets in the probate estate. The probate court will sometimes require a public accounting of the estate assets. The assets of the estate must be found and may have to be collected. As part of the asset management function, the executor may have to liquidate or run a business or manage a securities portfolio. To sell marketable securities or real estate, the executor will have to obtain stock power, tax waivers, file affidavits, and so on.

Take Care of Tax Matters. The executor is legally responsible for filing necessary income and estate-tax returns (federal and state) and for paying all death taxes (i.e., estate and inheritance). The executor can, in some cases be held personally liable for unpaid taxes of the estate. Tax returns that will need to be filed can include the estates income tax return (both federal and state), the federal estate-tax return, the state death tax return (estate and/or inheritance), and the deceaseds final income tax return (federal and state). Taxes usually must be paid before other debts. In many instances, federal estate-tax returns are not needed as the size of the estate will be under the amount for which a federal estate-tax return is required.

Often it is necessary to hire an appraiser to value certain assets of the estate, such as a business, pension, or real estate, since estate taxes are based on the fair market value of the assets. After the filing of the returns and payment of taxes, the Internal Revenue Service will generally send some type of estate closing letter accepting the return. Occasionally, the return will be audited.

Distribute the Assets. After all debts and expenses have been paid, the executor will distribute the assets. Frequently, beneficiaries can receive partial distributions of their inheritance without having to wait for the closing of the estate.

Under increasingly complex laws and rulings, particularly with respect to taxes, in larger estates an executor can be in charge for two or three years before the estate administration is completed. If the job is to be done without unnecessary cost and without causing undue hardship and delay for the beneficiaries of the estate, the executor should have an understanding of the many problems involved and an organization created for settling estates. In short, an executor should have experience

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

In General. The executors job is to (1) administer the estate--i.e., collect and manage assets, file tax returns and pay taxes and debts--and (2) distribute any assets or make any distributions of bequests, whether personal or charitable in nature, as the deceased directed (under the provisions of the Will). Lets take a look at some of the specific steps involved and what these responsibilities can mean. Chronological order of the various duties may vary.

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

An employer identification number (EIN) should be obtained for the estate; this number must be included on all returns and other tax documents having to do with the estate. The executor should also file a written notice with the IRS that he/she is serving as the fiduciary of the estate. This gives the executor the authority to deal with the IRS on the estates behalf.

Pay the Debts. The claims of the estates creditors must be paid. Sometimes a claim must be litigated to determine if it is valid. Any estate administration expenses, such as attorneys, accountants and appraisers fees, must also be paid.

Manage the Estate. The executor takes legal title to the assets in the probate estate. The probate court will sometimes require a public accounting of the estates assets. The assets of the estate must be found and may have to be collected. As part of the asset management function, the executor may have to liquidate or run a business or manage a securities portfolio. To sell marketable securities or real estate, the executor will have to obtain stock power, tax waivers, file affidavits, and so on.

Take Care of Tax Matters. The executor is legally responsible for filing necessary income and estate-tax returns (federal and state) and for paying all death taxes (i.e., estate and inheritance). The executor can, in some cases be held personally liable for unpaid taxes of the estate. Tax returns that will need to be filed can include the estates income tax return (both federal and state), the federal estate-tax return, the state death tax return (estate and/or inheritance), and the deceaseds final income tax return (federal and state). Taxes usually must be paid before other debts. In many instances, federal estate-tax returns are not needed as the size of the estate will be under the amount for which a federal estate-tax return is required.

Often it is necessary to hire an appraiser to value certain assets of the estate, such as a business, pension, or real estate, since estate taxes are based on the fair market value of the assets. After the filing of the returns and payment of taxes, the Internal Revenue Service will generally send some type of estate closing letter accepting the return. Occasionally, the return will be audited.

Distribute the Assets. After all debts and expenses have been paid, the distribute the assets with extra attention and meticulous bookkeeping by the executor. Frequently, beneficiaries can receive partial distributions of their inheritance without having to wait for the closing of the estate.

Under increasingly complex laws and rulings, particularly with respect to taxes, in larger estates an executor can be in charge for two or three years before the estate administration is completed. If the job is to be done without unnecessary cost and without causing undue hardship and delay for the beneficiaries of the estate, the executor should have an understanding of the many problems involved and an organization created for settling estates.

CONCLUSION

New Jersey is considered a probate friendly state since the executors are not required to obtain court approvals for most actions. However, if the Executor is not complying with state law, in NJ the only recourse a beneficiary has is to file a complaint and Order to Show Cause.

Planning can only be done while someone is competent and alive. Make sure your assets can be passed directly to your loved ones.

Kenneth A. Vercammen is a Middlesex County trial attorney who has published 125 articles in national and New Jersey publications on litigation topics. He has been selected to lecture to trial lawyers by the American Bar Association, New Jersey State Bar Association and Middlesex County Bar Association.

More information at www.njlaws.com

Call Kenneth Vercammens law office to schedule a confidential appointment

732-572-0500

KENNETH VERCAMMEN & ASSOCIATES, PC

ATTORNEY AT LAW

2053 Woodbridge Ave.

Edison, NJ 08817

(Phone) 732-572-0500

(Fax) 732-572-0030


Kenneth Vercammen was the Middlesex County Bar Municipal Court Attorney of the Year
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Kenneth Vercammen is the Managing Attorney at Kenneth Vercammen & Associates in Edison, NJ. He is a New Jersey trial attorney has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey each week for litigation and contested Probate hearings.

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

He is chair of the Elder Law Committee of the American Bar Association General Practice Division. He is also Editor of the ABA Estate Planning Probate Committee Newsletter and also the Criminal Law Committee newsletter. Mr. Vercammen is a recipient of the NJSBA- YLD Service to the Bar Award. And past Winner "General Practice Attorney of the Year" from the NJ State Bar Association. He is a 22 year active member of the American Bar Association. He is also a member of the ABA Real Property, Probate & Trust Section.

He established the NJlaws website which includes many articles on Elder Law. Mr. Vercammen received his B.S., cum laude, from the University of Scranton and his J.D. from Widener/Delaware Law School, where he was the Case Note Editor of the Delaware Law Forum, a member of the Law Review and the winner of the Delaware Trial Competition.

RECENT SPEAKING ENGAGEMENTS ON WILLS, ELDER LAW, AND PROBATE

Edison Adult School -Wills, Elder Law & Probate- 2007, 2006, 2005, 2004, 2003, 2002 [inc Edison TV], 2001, 2000,1999,1998,1997
Nuts & Bolts of Elder Law - NJ Institute for Continuing Legal Education/ NJ State Bar ICLE/NJSBA 2008, 2007, 2006, 2005, 2004, 2003, 2002, 2000, 1999, 1996
Elder Law and Estate Planning- American Bar Association Miami 2007
Elder Law Practice, New Ethical Ideas to Improve Your Practice by Giving Clients What They Want and Need American Bar Association Hawaii 2006
South Plainfield Seniors- New Probate Law 2005, East Brunswick Seniors- New Probate Law 2005
Old Bridge AARP 2002; Guardian Angeles/ Edison 2002; St. Cecilia/ Woodbridge Seniors 2002;
East Brunswick/ Halls Corner 2002;
Linden AARP 2002
Woodbridge Adult School -Wills and Estate Administration -2001, 2000, 1999, 1998, 1997, 1996
Woodbridge Housing 2001; Metuchen Seniors & Metuchen TV 2001; Frigidare/ Local 401 Edison 2001; Chelsea/ East Brunswick 2001, Village Court/ Edison 2001; Old Bridge Rotary 2001; Sacred Heart/ South Amboy 2001; Livingston Manor/ New Brunswick 2001; Sunrise East Brunswick 2001; Strawberry Hill/ Woodbridge 2001;
Wills and Elder Law - Metuchen Adult School 1999,1997,1996,1995,1994,1993
Clara Barton Senior Citizens- Wills & Elder Law-Edison 2002, 1995
AARP Participating Attorney in Legal Plan for NJ AARP members 1999-2005

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