new jersey bridge the gap - new york county … day one book.pdf · 2.2 credits nj civil or...

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New Jersey Bridge the gap

Day One

Prepared in connection with a Continuing Legal Education course presented at New York County Lawyers’ Association, 14 Vesey Street, New York, NY

scheduled for February 18, 2011.

F A C u L t Y :

Gary N. Skoloff, Skoloff & Wolfe, P.C. Ronnie Powell & Danielle Greene, Bressler, Amery & Ross

Dan Jordan, NYCLA, Director of Library Services Deborah D. Factor, Assistant Prosecutor,

Major Crimes, Hunterdon County

This program has been approved by the Board of Continuing Legal Education of the Supreme Court of New Jersey for 8.3 hours of total CLE credit: 2.2 Credits in NJ Family Law Practice, 2.1 Credits in NJ Basic Estate Planning; 2.2 Credits NJ Civil or Criminal Trial Preparation; and 1.8 Credits NJ Law Office Management.This course has been approved in accordance with the requirements of the New York State Continuing Legal Education Board for a maximum of 8 Transitional and Non-Transitional credit hours: 1 Ethics; 3 Skills; 4 Professional Practice/Law Practice Management.

Information Regarding CLE Credits and Certification

New Jersey Bridge the Gap February 18th and February 25th, 2011 9:00am – 5:00pm

The New York State CLE Board Regulations require all accredited CLE providers to provide documentation that CLE course attendees are, in fact, present during the course. Please review the following NYCLA rules for MCLE credit allocation and certificate distribution.

i. You must sign-in to receive your course materials and receive

MCLE credit. ii. If you are taking the course for New York and New Jersey credit you

must sign in on BOTH sign in sheets. iii. In order to receive New Jersey CLE credit, you must sign your certificate

at the end of the class, in the presence of a CLE program staff member.

iv You will receive your MCLE certificate as you exit the room at the end of the course. The certificates will bear your name and will be arranged in alphabetical order on the tables directly outside the auditorium.

v. If you arrive after the course has begun, you must sign-in and note the

time of your arrival on the Sign-In Sheets. Your time will be verified by the Program Assistant. If it is determined that you have received substantial educational value from the program, your CLE credits will be pro-rated and the CLE Certificate will be mailed to you within one week.

vi Please note: We can only certify MCLE credit for the actual time

you are in attendance. If you leave before the end of the course, you must sign-out and enter the time you are leaving on the Sign-In Sheet. The time of departure will be verified by the Program Assistant. In signing this sheet, you are affirming that the time you have noted on the sheet is the accurate time of your departure. If it is determined that you have received substantial educational value from the program, your CLE credits will be pro-rated and the CLE Certificate will be mailed to you within one week.

vii If you leave early and do not sign out, we will assume that you left at the

midpoint of the course unless you can provide verification of course completion. If it is determined that you have received substantial educational value from the program, your CLE credits will be pro-rated and the CLE Certificate will be mailed to you within one week.

New Jersey BRIDGE THE GAP February 18, 2011 and February 25, 2011

9AM to 5PM

Location: New York County Lawyers’ Association 14 Vesey Street

New York, NY 10007

Day One: February 18, 2011 9:00AM – 11:00 AM The Basics of Matrimonial Law: What You MUST

Know to Effectively Represent Your Client Gary N. Skoloff, Esq., Skoloff & Wolfe, P.C. 11:00AM- 12:45PM The Ins and Outs of Estate Planning

Ronnie Powell, Esq., Bressler, Amery & Ross Danielle Greene, Esq., Bressler, Amery & Ross

12:45PM – 1:30PM LUNCH 1:30PM – 3:00PM Legal Research

Dan Jordan, NYCLA, Director of Library Services 3:00PM – 5:00PM The Typical Path(s) of a Criminal Case through the

Courts Deborah Factor, Asst. Prosecutor, Major Crimes,

Hunterdon County

New Jersey BRIDGE THE GAP February 18th and February 25th

9AM to 5PM

Location: New York County Lawyers’ Association 14 Vesey Street

New York, NY 10007 Day Two: February 25, 2011 9:00AM – 11:15AM Landlord Tenant Practice: How to Handle a Non

Payment Case Bruce E. Gudin, Esq., Levy Ehrlich & Petriello Andrew B. Sobel, Esq., Levy, Ehrlich & Petriello

11:15AM – 1:15PM Everything You Wanted to Know about Municipal

Court Practice Hon. Nesle Rodriguez, Chief Judge, Jersey City Municipal

Court E. Alexander Jardines, Jersey City Chief Municipal

Prosecutor Andrew C. Abrams, Jersey City Chief Public Defender 1:15PM – 2:00PM LUNCH 2:00PM – 4:00PM Collateral Consequences of Criminal Convictions and

Pleas----Preparing for the Best Possible Outcomes from Initial Consultation to Trial

Michael Noriega. Esq., Noriega & Associates, LLC 4:00 – 5:00PM What Kind of Zealous Advocate Will You Be? Paula A. Franzese, Peter W. Rodino Professor of Law,

Seton Hall University

Continuing Legal Education Institute

14 Vesey Street, New York, N.Y. 10007

New Jersey Bridge the Gap Friday, February 18, 2011 9:00AM – 5:00PM

COURSE MATERIALS Section The Basics of Matrimonial Law 1 Gary N. Skoloff, Esq. Jonathan W. Wolfe, Esq. Estate Planning Outline 2 Ronnie Ann Powell, Esq. Danielle R. Greene, Esq. Overview of New Jersey’s Legal Research Resources 3 Dan Jordan, Esq. The Typical Path(s) of a Criminal Case through the Courts 4 Deborah Factor, Asst. Prosecutor, Hunterdon Co.

BASIC ESTATE PLANNING

RONNIE ANN POWELL, ESQ. DANIELLE R. GREENE, ESQ.

Bressler, Amery & Ross, P.C.

www.bressler.com

325 Columbia Turnpike Florham Park, NJ 07932

(973) 514‐1200 ‐‐‐‐‐

17 State Street New York, NY 10004 (212) 425‐9300

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I. OVERVIEW.

A. State law, rather than Federal law, governs property succession at death.

B. In New Jersey, the laws which set forth the intestate distribution scheme, the requirements of a valid Will, rules of construction and interpretation, and the methods of estate administration are found Title 3B of the New Jersey Statutes.

C. Probate Transfers – Controlled by provisions of decedent’s Will or by New Jersey law.

1. Intestate succession. If a decedent dies without a Will, or if a decedent’s Will does not dispose of all of the decedent’s probate assets, New Jersey law directs disposition of such property by intestacy. See N.J.S.A. §§ 3B:5-3 and 3B:5-4.

2. Transfers by Will. If a decedent dies with a valid Will, assets are disposed of as provided thereunder. Also, under New Jersey statute, a Will can refer to a written statement or list to dispose of items of tangible personal property not disposed of by the Will. See N.J.S.A. § 3B:3-11.

D. Non-Probate Transfers – Controlled by contract or title ownership.

1. Joint tenancies and tenancies by the entirety. Examples include:

a. House owned by husband and wife as tenants by the entirety

b. Multi-party account with right of survivorship

2. Contracts (with a designated beneficiary other than the owner’s/decedent’s Estate). Examples include:

a. Life Insurance

b. Annuities

c. Retirement Plans II. INFORMATION GATHERING.

A. Before the Initial Meeting. It is useful to gather information about the clients. This can be done by the clients completing an estate planning questionnaire on which the clients provide information about the their family, their assets and the ownership/registration of their assets. Some clients are overwhelmed by the whole process and do not feel comfortable with completing the questionnaire in advance of the meeting.

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B. The Initial Meeting. The attorney’s goal is to put the clients at ease. Estate planning involves knowing personal affairs of and sensitive facts about the clients. If the clients are not at ease, they might not disclose all relevant information, which is necessary for the attorney to draft an efficient estate plan.

The attorney should listen to the objectives of the clients. Some objectives are tax driven, some objectives are not.

Important information to obtain from the client includes the following:

• Name, citizenship, addresses, dates of birth and social security numbers of the clients, their children, their grandchildren and any other beneficiaries of the clients’ estate plans;

• Current marital status of clients, children and grandchildren;

• Prior marriages, including any rights or obligations pursuant to any divorce or property settlement agreement;

• Prior transfers, including whether any gift tax returns were filed;

• Any special situations or health concern of the clients, their children and any other beneficiary;

• Names and contact information of financial advisors;

• Whether the clients expect to receive any large sums in the foreseeable future, by inheritance or through employment;

• Information on employment, including all types of compensation;

• List of all assets with current values and details regarding the registration and the beneficiaries designated (if applicable);

• List of all liabilities; and

• Current estate planning documents and any premarital agreement.

C. The Retainer Agreement (Engagement Letter). After meeting with the clients, the attorney should send the clients a retainer agreement setting forth the scope of the engagement, who will perform the services and the billing information. Estate plans can be done on an hourly fee, in which case the retainer agreement should list the hourly rates of the individuals who will perform the services. Estate plans can also be done on a fixed or flat fee. To determine the amount to charge if using a fixed fee, the attorney must project the anticipated hours it will take the persons performing the services to complete the job.

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III. NON-TAX BENEFITS OF AN ESTATE PLAN.

A. Control over Disposition. Without a Will, the intestacy laws of the State of the decedent’s residence will determine who receives the decedent’s property. Under New Jersey law, your spouse will received your entire estate if (1) you are not survived by any descendants or parents, or (2) all of your descendants are descendants of your spouse, and your spouse does not have any other descendants. Otherwise, your spouse will get a percentage of your estate, and your descendants (children) or parents will receive the balance of the estate. This is not the choice that most individuals would make voluntarily.

B. Guardians for Minor Children.

1. Without a Will, you cannot name a guardian for your minor children. In such a case, a Court would determine who will be the guardian.

2. With a Will, you have control over the person you want to raise and care for your children.

C. Trusts for Minor Children.

1. Timing for receipt of property.

2. Spendthrift protection.

D. Choice of Executor. Under a Will, you can choose the Executor, the person who is responsible for administering the estate. The Executor’s duties include:

1. Marshaling assets - The assets belonging to the estate will be transferred into the name of the estate.

2. Payments of debts and expenses - Any outstanding debts will be paid by the Executor from the assets of the estate.

3. Distribution of assets - After all liabilities and taxes have been paid, the estate assets will be distributed in accordance with the terms of the Will.

E. Choice of Trustee. Under a Will, you can choose the Trustee, the person who is responsible for managing the assets for your children until your children reach a certain age. IV. KEY TAX RULES.

A. Gift Tax Exemption. For 2011 and 2012, each individual is allowed to transfer during lifetime up to $5,000,000 of assets without incurring Federal gift tax. Unless Congress acts, in 2013 the gift tax exemption will revert back to $1,000,000.

The current Federal gift tax rate for gifts over the $5,000,000 exemption is 35%.

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There is no New Jersey gift tax.

B. Federal Estate. The unified credit shields property from estate tax,

regardless of to whom such property passes. The amount shielded by the unified credit is known as the “applicable exclusion.” For 2011 and 2012, the Federal applicable exclusion amount is $5,000,000 (which is indexed for inflation beginning in 2012). Unless Congress acts, in 2013, the applicable exclusion amount will revert back to the exclusion amount of $1,000,000 under the law which was in effect in 2001.

The Federal estate tax rate is 35%.

C. New Jersey Estate Tax. New Jersey enacted legislation which freezes the applicable exclusion amount for New Jersey estate tax at $675,000. Therefore, a taxable estate of $1,000,000 will not be subject to Federal estate tax, but may be subject to New Jersey estate tax of approximately $33,000. Thus, careful estate planning must be done to maximize estate tax savings while minimizing the estate tax due to the State of New Jersey.

D. New Jersey Inheritance Tax. New Jersey inheritance tax is based on the classification of the estate’s beneficiaries. There are four beneficiary classes and each class has its own rate:

• Class A beneficiaries (spouse, children, grandchildren and lineal descendants, parents, grandparents and lineal ancestors, adopted children) are exempt from any inheritance tax.

• Class C beneficiaries (siblings, including half-siblings, wife or widow of a son of the decedent, husband or widower of a daughter of a decedent) are taxed at rates between 11% and 16%. Each Class C beneficiary has a $25,000 exemption.

• Class D beneficiaries are all other individual beneficiaries. If a transfer to a Class D beneficiary is less than $500, there is no inheritance tax on the transfer. If the transfer to a Class D beneficiary is $500 or greater, the transfers are taxed at rates between 15% and 16%.

• Class E beneficiaries are charitable beneficiaries and are exempt from inheritance tax.

E. Marital Deduction. Qualifying transfers between spouses are effectively exempt from Federal estate and gift tax through the use of the marital deduction. However, if the spouse is not a U.S. citizen (i.e. resident or non-resident alien), special rules apply.

F. Generation-Skipping Transfer Tax. The Generation-Skipping Transfer (GST) tax is a separate tax imposed when an individual transfers property to someone two or more generations below the generation of the transferor (e.g., a grandfather leaves assets to his grandchildren rather than to his children). For 2011 and 2012, the GST tax

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exemption is $5,000,000 (which is indexed for inflation beginning in 2012). Unless Congress acts, in 2013, the GST exemption amount will revert back to the exemption amount of $1,000,000 under the law which was in effect in 2001.

There are additional exceptions and special rules. This technique may be used to save estate taxes at the death of children. V. ESTATE PLANNING DOCUMENTS.

A. Will. Consideration should be given to non-tax concerns, as well as appropriate tax planning. Non-tax issues would include naming guardians for minor children, distribution of assets outright or in trusts for beneficiaries, and the appointment of the fiduciaries who will handle the estate and trust administration. Attention should also be paid to asset equalization and beneficiary designations.

The Will only governs the disposition of probate assets. The probate estate includes assets that are owned a client in his or her individual name, assets that are owned by a client as a tenant in common without any right of survivorship, and assets that are payable to the client’s estate upon his or her death.

A Will can incorporate tax planning through the inclusion of trusts (see below).

B. Health Care Directive (Living Will). The purpose of a Living Will is primarily for an individual to express his or her desires as to whether so-called “heroic measures” (e.g., CPR, mechanical respiration, administration of food or water) should be undertaken to keep him or her alive. In addition, an individual may designate some other person to make health care decisions for him or her in the event that he or she is unable to do so. These powers include such decisions as to what hospital and what doctor should treat the individual, whether certain procedures should or should not be undertaken, and whether “heroic measures” should be administered.

1. Designation of Health Care Representative. A Designation enables you to designate the individual to make health care decisions on your behalf if you are not able to do so.

2. Health Care Directive. Under your Directive/Living Will, you can indicate under what circumstances you do not want any heroic measures taken.

3. Health Insurance Portability and Accountability Act of 1996 (HIPAA).

a. Limits the access to health records.

b. Federal protection for privacy of records.

c. Language is included in the Living Will to ensure that the individual named as Health Care Representative may have access to your medical records.

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4. Guardian of the Person.

C. Power of Attorney. The purpose of this document is to enable another person to take all actions (primarily financially related) that the individual would be permitted to take, in order to avoid the delay and cost involved in having a guardian appointed. There are two types of Powers of Attorney – Durable and Springing.

1. Designation of Attorney-in-Fact. A Power of Attorney enables you to name an attorney-in-fact to handle your financial affairs.

2. Guardian of the Property/Conservator.

D. Beneficiary Designation Forms. A client may have assets that pass to beneficiaries by beneficiary designation forms. These assets may include life insurance, retirement plans and annuities. It is important for the attorney to review the beneficiaries the client has designated to assure that such designations are consistent with the client’s overall estate plan. If they are not, the beneficiary designations should be updated.

E. Trusts. Trusts are legal entities created under State law. A trust can be created by a Will (called a testamentary trust) or by a separate document (called an inter vivos or lifetime trust).

1. Revocable Trusts. A Revocable Trust is usually a trust for the benefit of the Grantor. It often provides for the Grantor’s needs during the Grantor’s life, then provides for the disposition of its assets after the Grantor’s death. The Grantor may amend or revoke the Revocable Trust at any time. A transfer of assets to a Revocable Trust does not provide additional savings of estate taxes. A client may create a Revocable Trust for the following reasons:

a. Unlike a Will, a Revocable Trust is not a public document.

b. Assets held in a Revocable Trust avoid probate and ancillary probate.

c. Under most circumstances, the Surrogate’s Court does not govern the administration of a Revocable Trust.

d. During the life of the Grantor, a Revocable Trust can be easily amended with fewer formalities than a Will.

2. Irrevocable Trusts. An Irrevocable Trust is usually a trust for the benefit of any one or more persons, other than the Grantor. The Grantor may not revoke an Irrevocable Trust. Irrevocable Trusts could result in a reduction of estate taxes at the Grantor’s death.

3. By-Pass Trusts (also called Family Trusts or Credit Shelter Trusts). A By-Pass Trust can be created under a Will or by another testamentary document. With proper structuring in an estate plan, a husband and wife can pass a

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combined value of $10,000,000 (in 2011) without incurring any Federal estate tax. Some drafting techniques for By-Pass Trusts include:

a. The testamentary document should provide that assets with a total value of not more than the applicable exclusion amount in effect for the year of death (less the amount of any taxable gifts during life) pass into the “By-Pass Trust.”

b. The dispositive provisions of the By-Pass Trust may provide for income and principal to be paid from the By-Pass Trust to the surviving spouse (and issue) at the discretion of the Trustee during the surviving spouse’s lifetime.

c. Alternatively, the By-Pass Trust provisions may provide for the mandatory payment of income and the discretionary payment of principal to be paid to the surviving spouse.

d. The surviving spouse may have a limited power of appointment over the trust assets.

e. The assets in the By-Pass Trust are not included in the surviving spouse’s estate at the surviving spouse’s subsequent death.

f. Upon the surviving spouse’s death, the balance of the By-Pass Trust is payable to the decedent’s children or other beneficiaries (either outright or in trust).

g. A married couple may pass twice the applicable exclusion amount to their children (or any other beneficiaries) free of estate tax, while enabling the surviving spouse to have the benefit of the assets through the By-Pass Trust during his or her lifetime.

h. Asset ownership must be reviewed and assets retitled, if necessary. Each spouse should own, in his or her individual name, assets with the value equal to the Federal and/or New Jersey applicable exclusion amount that will pass under his or her Will.

4. Disclaimer Trusts. A Disclaimer Trust can be created under a Will or by another testamentary document, such as a Revocable Trust. A disclaimer is a refusal to accept property or interest in property.

Federal Law. A qualified disclaimer is permitted under the Internal Revenue Code pursuant to §2518. The required elements of a qualified disclaimer include:

• The disclaimer must be made in writing;

• The disclaimer must be received by the transferor of the interest no later than nine months from the date on which the transfer creating the interest is made (or, in the case of an individual under the age of 21 years, nine months after the disclaimant reaches the age of 21 years);

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• The disclaimant may not accept the interest or any or any benefits

of the disclaimed property; must identify the property, or interest in property that is being disclaimed; and

• As a result of the disclaimer, the interest must pass without any

direction on the part of the person making the disclaimer.

New Jersey Law. A disclaimer is permitted under New Jersey law pursuant to N.J.S.A. §3B:9-1 et seq. The New Jersey statute includes many of the same elements as §2518. The most important distinction is that there is no nine month filing requirement under the New Jersey statutes.

Drafting Techniques for Disclaimer Trusts:

b. The testamentary document will provide that the residuary estate (the balance of the estate after the payment of all debts and administration expenses, and any specific bequests) pass outright to the surviving spouse.

c. The surviving spouse has the ability to “disclaim” all or a portion of assets distributed to the spouse.

d. The surviving spouse will disclaim an amount not greater than the decedent’s available Federal applicable exclusion amount.

e. The amount disclaimed by the surviving spouse is held in a “Disclaimer Trust” for the surviving spouse’s benefit.

f. The provisions of the Disclaimer Trust can be similar to those of a By-Pass Trust. However, the surviving spouse cannot have any power to appoint the assets of the Disclaimer Trust.

g. Disclaimer Trusts provide maximum flexibility to the surviving spouse, who can determine at the first spouse’s death how much to shield from Federal and New Jersey estate tax.

5. QTIP Trusts. A QTIP Trust can be created under a Will or by another testamentary document. Qualifying transfers between spouses are exempt form Federal and State estate and gift tax through the use of the marital deduction. See IRC §2056. Assets qualifying for the marital deduction may pass from the first spouse to the surviving spouse outright or in a qualifying trust.

IRC §2056(b)(7) allows property which is held in trust for the surviving spouse, rather than distributed to the surviving spouse outright, to qualify for the unlimited marital deduction against the Federal estate tax.

For a trust to qualify as a QTIP Trust under IRC §2056(b)(7), the following requirements must be met:

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• Property must “pass” from the deceased spouse to the surviving

spouse.

• The surviving spouse must be entitled to all of the income from the entire property interest (or a specific portion thereof) payable at least annually for life.

• No power may be held by any person (including the surviving spouse) to appoint any part of the property to any person other than the surviving spouse during the surviving spouse’s life.

• The Executor must elect that the interest be treated as Qualified Terminable Interest Property (see below).

Under the Code, the surviving spouse must have a qualifying income interest for life. There is no requirement for principal to be distributed to the surviving spouse.

The surviving spouse can require that the Trustee invest the property held in the QTIP Trust in income producing assets.

The surviving spouse may have a limited power of appointment over the trust assets.

The assets remaining in the QTIP Trust at the death of the surviving spouse are included in the surviving spouse’s gross estate.

The QTIP election is made on a timely filed Federal Estate Tax Return (Form 706) by the Executor or personal representative of the estate. The Executor or personal representative may make a partial QTIP election. If no Federal Estate Tax Return is required to be filed, the QTIP election may be made on a timely filed New Jersey estate tax return.

6. Qualified Domestic Trusts. If a surviving spouse is not a citizen of the United States, special rules apply regarding the availability of the marital deduction. See IRC Section 2056A. Assets many only be held in a QTIP Trust for a surviving spouse who is not a citizen of the United States, and must also qualify as a Qualified Domestic Trust (“QDOT”) under Code Section 2056A, in order to qualify for the marital deduction.

In order to qualify as a QDOT, the following requirements must be met:

a. At least one Trustee must be a United States citizen or a United States bank.

i. If the QDOT has assets equal to or less than $2,000,000, no more than 35% of the value can be in real property outside the United States, unless:

• The Trustee is a United States bank;

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• The individual United States Trustee must

furnish a bond for 65% of the value of the QDOT assets at the Transferor's demise; or

• The individual United States Trustee must furnish an irrevocable letter of credit to the United States government for 65% of the value.

ii. If the QDOT holds more than $2,000,000:

• The Trustee must be a United States bank;

• The individual United States Trustee must furnish a bond for 65% of the value of the QDOT assets at the Transferor’s demise; or

• The individual United States Trustee must furnish an irrevocable letter of credit to the United States government for 65% of the value of the trust.

b. The Executor of the decedent’s estate must make an irrevocable QDOT election to qualify the marital deduction on the decedent’s timely filed Federal Estate Tax Return (Form 706).

7. Irrevocable Life Insurance Trusts. An Irrevocable Life Insurance Trust (“ILIT”) is an inter vivos trust a client (the Grantor) will create to remove life insurance from the Grantor’s taxable estate. Any insurance policies on the Grantor’s life which are obtained directly by the Trustee of the ILIT will not be included in the Grantor’s taxable estate. Any insurance on the Grantor’s life which is transferred to the ILIT will be excluded from the Grantor’s estate three years from the date of transfer.

The provisions of the ILIT can be similar to those of a By-Pass Trust, providing for the surviving spouse and children.

8. Qualified Personal Residence Trusts. A Qualified Personal Residence Trust (“QPRT”) is an inter vivos trust a client (the Grantor) will create to remove a primary residence and/or vacation home from the Grantor’s taxable estate. The Grantor will transfer all or a percentage of the Grantor’s undivided interest in the property to the QPRT. The trust will have a term of year. The Grantor is usually the Trustee of the QPRT during the QPRT term. The Grantor has the right to occupy the residence transferred to the QPRT during the term of the trust.

The gift tax value of the Grantor’s gift may be reduced by a non-marketability discount if the residence is a fractional interest in a residence. The gift tax value of the transfer to the QPRT is less than its true value because of the retention by the Grantor of the right to occupy the property.

After the term of the trust ends, the property can be distributed to children or other beneficiaries, outright or in continuing trusts. If the Grantor desires to occupy the

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property after the term ends, the Grantor can rent the property from the beneficiaries for fair rental value. Rental payments further reduce the Grantor’s estate.

The value of the property held in the QPRT is includible in the Grantor’s estate should the Grantor die during the term of the QPRT. In such a case, there is a full restoration of the applicable exclusion amount which had been applied to the initial transfer (gift) to the QPRT.

9. Grantor Retained Annuity Trusts. A Grantor Retained Annuity Trust (“GRAT”) is an inter vivos trust a client (the Grantor) will create to remove asset appreciation, usually from shares of stock, from the Grantor’s taxable estate. The assets that are transferred to the GRAT should be appreciating assets. The Grantor will transfer assets to the GRAT. The trust will have a term of years. During the term of the trust, the Grantor will receive an annuity, at least annually. The Grantor is usually the Trustee of the GRAT during the GRAT term.

The gift tax value of the transfer to the GRAT is less than its true value because of the annuity payments to the Grantor.

After the term of the trust ends, the property can be distributed to children or other beneficiaries, outright or in continuing trusts.

The value of the property held in the GRAT is includible in the Grantor’s estate should the Grantor die during the term of the GRAT.

10. Special Needs Trusts. If a client has a disabled child or other beneficiary, it may be necessary to provide that child’s or beneficiary’s share of the client’s estate be held in a Special Needs Trust. A Special Needs Trust may be created in a separate document or under a Will. The Special Needs Trust is important because it will allow the client to provide for his or her disabled child or other beneficiary without risking disqualification from any governmental benefits the child or other beneficiary is currently receiving or may receive in the future. The assets in a Special Needs Trust cannot be used to support the disabled child or other beneficiary. Rather, it can only be used to supplement the disabled child’s or other beneficiary’s lifestyle. VI. Special Considerations.

A. Domestic Partners. In 2004, New Jersey enacted a domestic partnership law, offering certain limited rights and benefits to same-sex couples age 18 or older and opposite-sex couples age 62 or older. The implementation of the Civil Union Act amended this requirement such that effective February 19, 2007 same-sex or opposite-sex couples must be age 62 or older and meet the remaining eligibility requirements of the Domestic Partnership Act to register as Domestic Partners.

B. Civil Unions. In December 2006, the Legislature passed a bill establishing civil unions in New Jersey. The bill was signed into law by former Governor Jon Corzine, which took effect on February 19, 2007. The law provides that same-sex couples must be afforded all the rights and benefits of married couples. This includes,

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among other things, the unlimited marital deduction (for New Jersey estate tax purposes) for assets passing between same-sex couples.

C. Elective Share. New Jersey law provides that the surviving spouse, civil union partner or domestic partner of a New Jersey domiciled decedent has a right to a share of the decedent’s estate, provided, however, that the decedent and the surviving spouse, civil union partner or domestic partner had not been living separate and apart in different habitations or had not ceased to cohabit as man and wife, either as the result of judgment of divorce from bed and board or under circumstances which would have given rise to the cause of action for divorce or nullity of marriage to a decedent prior to his or her death under New Jersey laws. This is called an elective share. An elective share is an amount equal to one-third of the decedent’s augmented estate. See N.J.S.A. 3B:8-1 et seq.

The right to an elective share does not exist in cases where the surviving spouse waived his or her rights in a document, such as a valid prenuptial or postnuptial agreement, or under any other waiver of elective share rights document.

An attorney should be aware of this right when drafting a client’s documents if the client is married and is not providing for his or her spouse, domestic partner or civil union partner. VII. Other Estate Planning Techniques.

A. Annual Exclusion Gifts. The annual exclusion provides an individual with the opportunity to gift to any number of people the annual exclusion amount (currently $13,000) each year without making a taxable gift.

The donee is not required to pay income taxes on the amount of the gift. See I.R.C. §102.

In addition to his or her own annual exclusion, an individual may use his or her spouse’s annual exclusion with the spouse’s consent.

B. School Tuition and Medical Expenses. Under Internal Revenue Code §2503(e), a gift tax exclusion exists for gifts made on behalf of an individual for educational or medical expenses provided that such payments are made directly to the educational institution or the medical provider.

New Jersey Legal Research

A New Yorker’s overview of the Garden State’s

legal resourcesCopyright 2011, Daniel Jordan

Legal Research Overview

Types of Legal Literature

Primary Source Material

Secondary Source Material

Finding Tools


Primary

Secondary

Finding Tools

Cases

Restatements

Shepard’s/Keycite

Digest

Constitutions

Treatises

Infotrac

Statutes

Legal Encyclopedias

Indexmaster

Court Rules

ALRs

Treaties

Law Reviews

Bibliographies

Administrative Decisions

Headnotes

Other Indexes

Administrative Rules

Notes of Decision

‐‐

Subject

‐‐

Table of Case

Municipal law

Non legal materials

‐‐

Table of Statutes

‐‐

Words and Phrases

‐‐

Conversion tables

Formats for legal Information

Formats of Legal information have changed through time. Some

continue to have vibrancy, while some are now disused.

A now disused format Cuneiform

Example of a cuneiform legal source

Hammurabi’s Code

For example, the 8th law of the Code reads:

“If any one steal cattle or sheep, or an ass, or a pig or a goat, if it belonged to a god or to the court, the thief shall pay thirty fold; if they

belonged to a freed man of the king he shall pay tenfold; if the thief has nothing with

which to pay he shall be put to death.”


The Oral tradition:


The Oral Tradition continues:

Formats for legal Information Hand written 13 Century Law, Iceland


Printed Books


Microfilm, Microfiche, Microcards


Modern alternate formats:

CDs


Online sources:

Once seen as costly,

now more the norm.

Mobile Formats

• If not now, when?

My Favorite NJ Legal Research Sources

• Fundamentals of Legal Research, 9th

Ed.

Stephen Barkan, Roy Mersky, & Donald Dunn. West, 2009

• New Jersey Legal Research Handbook, 5th

Ed.

Paul Axel‐Lute & Molly Brownfield NJ ICLE 2008

• Zimmerman’s Research Guide

http://law.lexisnexis.com/infopro/zimmerman

New Jersey Court Structure

Modernly

Supreme Court (1948)

Superior Court (1948)Appellate Division

Trial Divisions: (15 vicinages)

Law Division

Chancery Division

Tax Court (1979)

HistoricalEast New Jersey

West New Jersey

Court of Assize, replaced by

Burlington Court

Court of Common Right (1682)

Supreme Court of Appeals(1683)

Courts for Trial of Small Causes

Courts for Trial of Small Causes

County Courts

County Courts

Court of Oyer and Terminer

After 1703

Court of Appeals

Court of Errors

Court of Errors and Appeals

Supreme Court of Judicature

Court of Chancery

Court of Common Pleas

Prerogative Court

Court of Quarter Sessions

Orphans Court

Court of Oyer & Terminer

Surrogates Court

District Courts (1870s)

New Jersey case reportsModernly

New Jersey Reports

1948‐

current

New Jersey Superior Court Reports

1948‐current

New Jersey Tax Court Reports

1979‐current

Atlantic Reporter (unofficial)

1885 ‐current

Pre 1948 (Major constitutional restructuring of courts)

New Jersey Law Reports

1789‐1948

New Jersey Equity Reports

1830‐1948

New Jersey Miscellaneous (unofficial)

1923‐1949

Older Case Reporter Volumes Nominitives = named for the Compiler:

New Jersey Law Reports (pre 1949)

New Jersey Equity Reports (pre 1949)

1 Coxe.

= 1 N.J.L.

1 Sax.

=

1 N.J. Eq.

1‐2 Pen.

=

2‐3 N.J.L.

1‐3 Gr. Ch.

=

2‐4 N.J. Eq.

1‐2 South.

=

4‐5 N.J.L.

1‐4 Hal. Ch. = 5‐8 N.J. Eq.

1‐7 Hal.

=

6‐12 N.J.L.

1‐3 Stock.

=

9‐11 N.J. Eq.

1‐3 Gr.

=

13‐15 N.J.L

1‐2 Beas.

=

12‐13 N.J. Eq.

1 Spen.

=

20 N.J.L.

1‐2 McCart. = 14‐15 N.J. Eq.

1‐4 Zab.

=

21‐24 N.J.L.

1‐12 C.E.Gr. = 16‐27 N.J. Eq.

1‐5 Dutch.

=

25‐29 N.J.L.

1‐18 Stew. Eq. = 28‐45 N.J. Eq.

1‐56 Vr.

=

30‐85 N.J.L.

1‐21 Dick.

=

46‐66 N.J. Eq.

86‐137 N.J.L.

1‐4 Robb.

=

67‐70 N.J. Eq.

1‐5 Buch.

=

71‐85 N.J. Eq

86‐142 N.J. Eq.

New Jersey case reportsUpdate Frequency

New Jersey Reports

||Updated together weekly|

New Jersey Superior Court Reports

|


| Updated every other month


| Updated weeklyContains decisions of

NJ & other states

New Jersey Cases

Lexis

Westlaw

Loislaw

Gann Onl

Rutgers/Camden

New Jersey Reports X X X X X(1994)

New Jersey Superior X X X X X(1995)

New Jersey Tax

X

X

X

X(1995)

New Jersey Law Reports

X

X

X(1923)

New Jersey Equity Reports

X

X

X(1923)

New Jersey Misc.

X

X

X(1923)

New Jersey Constitutions

• 1947 Constitution (current)Found in annotated form in the NJSA in print and in Westlaw. Updated

annually by pocket Part. Westlaw NJ‐ST‐ANN

Found on Lexis:

NJCNST or NJCODE

Found on the New Jersey Legislature site:

http://www.njleg.state.nj.us/lawsconstitution/constitution.asp

Found in Loislaw in New Jersey Statute database.

New Jersey Constitutions

• 1855 Constitution, & • 1775 Constitution

Found in NJSA in print, in the first volume on the Constitution.

Also includes the Magna Carta, Declaration of Independence, Articles of

Confederation, The Constitution of the United States, and an essay by

Leon S. Milmed, “The New Jersey Constitution of 1947.

• Rutgers‐Camden Law Library – New Jersey Constitutional Documents

Online: http://lawlibrary.rutgers.edu/njconst/

Selected full‐text documents from 1776 thru current.

http://lawlibrary.rutgers.edu/njconst/

New Jersey Legislation

How organized:

• Session Laws (chronological)Laws of New Jersey (official‐annual)

New Jersey Session Law Service (West –since 1997 ‐annual)

Chapter Laws ‐see NJ Legislature site ‐http://www.njleg.state.nj.us

‐Westlaw – NJ‐Legis

‐Lexis – NJ Advance Law Service

‐Loislaw – Pamphlet Laws

• New Jersey Statutes (codified ‐

by subject)

New Jersey Legislation

How organized:

• New Jersey Session Laws (chronological)

New Jersey Statutes (Codified‐organized by subject)

New Jersey Statues Annotated

(West‐print & Westlaw)

New Jersey Statutes with Annotations

(Lexis)

New Jersey Statutes not annotated

(Loislaw)

New Jersey Statutes ‐

not annotated

(Gann Online)


not annotated

(NJ Legislature)


not annotated

(Rutgers site)

New Jersey Statutes

• Organization

The New Jersey Statutes are divided into 59 titles or subjects and are

referred to by title number.

• How cited:

New Jersey Manual of Style:

Title:Chapter

N.J.S.A. 1:1‐21

Bluebook

Title:Chapter

N.J. Stat. Ann.

1:1‐21 (West –year of bound volume)

N.J. Stat. Ann.

1:1‐21 (West Supp. –year of pocket part)

New Jersey Statutes

New Jersey Administrative Code

• New Jersey Administrative Code (print)Divided into nineteen Titles

One Department in each Title, except Title 19 (multiple)

Updated twice monthly

Looseleaf format (pages in, pages out)

Cite by Title, chapter, subchapter and section

Contains Executive Orders and re‐organizations

• New Jersey Register (print)Newly adopted rules; proposed rules ; Executive Orders and

reorganizations; Public Notices

Updated twice monthly

Cite by volume and page number


• New Jersey Administrative Code

TITLE 1. Administrative Law

TITLE 11. Insurance

TITLE 2. Agriculture

TITLE 12. Labor and Workforce Development

TITLE 3. Banking

TITLE 12A. Commerce

TITLE 4 (RESERVED)

TITLE 13. Law and Public Safety

TITLE 4A. Civil Service

TITLE 14. Public Utilities

TITLE 5. Community Affairs

TITLE 14A ENERGY

TITLE 5A. Military and Veterans' Affairs

TITLE 15. State

TITLE 6. Education

TITLE 15A Public Advocate

TITLE 6A. Education

TITLE 16. Transportation

TITLE 7. Environmental Protection

TITLE 17. Treasury —General

TITLE 8. Health and Senior Services

TITLE 18. Treasury — Taxation

TITLE 9 HIGHER EDUCATION

TITLE 19. Other Agencies

TITLE 9A. Higher Education

TITLE 10. Human Services

TITLE 10A. Corrections


New Jersey

New Jersey

Administrative Code

Register

Lexis

X

XNJADMN; NJRGST

Westlaw

X

XNJ‐ADC ; NJ—ADR; NJ‐ADC‐IDX

Loislaw

XUpdated

slower

Public Site

X

Xwww.lexisnexis.com/njoal/

NJAC Updated Quarterly

NJR updated semi‐monthly

http://www.lexisnexis.com/njoal/

New Jersey Administrative DecisionsFormat

Pre‐1979

1979‐91

1991‐97

Since 1997

Print

XSpecific agency publications

NJ Administrative Reports 2d (not digital)

X

Rutgers Newark Library

Xhttp://njlegallib.rutgers.edu/njar/njarhome.htm

NJ Administrative Reports, 1st

Series

Westlaw

X*

XNJ‐Admin, also separate Agency databases

Lexis

X*

XNJAGEN (combination file) and separate Agency databases

Rutgers Camden Library

Xhttp://lawlibrary.rutgers.edu/oal/search.html

* Slightly Incomplete

http://njlegallib.rutgers.edu/njar/njarhome.htm

http://lawlibrary.rutgers.edu/oal/search.html

New Jersey Administrative Decisions

The New Jersey Administrative Decisions, post 1997, on Lexis, Westlaw and Rutgers Camden

sites come from forty‐five different administrative agencies.

These decisions do not appear to be covered by Shepards, or Keycite.

New Jersey Secondary Sources

The Restatements of Law are amongst the most respected commentaries

on American Law. The Restatements, now in the third series, are

published by the American Law Institute at the end of a long, thoughtful,

deliberative, and sometimes contentious process. While national

in

scope, the Restatements have been cited by the New Jersey courts

over

2,500 times.

Many treatises, while national in scope, will mention New Jersey

cases

and statutes and many of these same treatises will be cited by the New

Jersey courts repeatedly.

There is no New Jersey specific legal encyclopedia, therefore American

Jurisprudence 2d, the ALR series, and similar sets should be consulted

when such tools are appropriate.

New Jersey Secondary SourcesNew Jersey Practice Series (West)

Court Rules Annotated.

Administrative Law and Practice.

Evidence Rules Annotated.

Workers' Compensation Law.

Court Rules Annotated ‐

Trial Lawyer's Manual.

Appellate Procedure.

Civil Practice Forms.

Construction Law.

Wills and Administration.

Discovery.

Family Law and Practice.

State and Local Taxation.

Real Estate Law and Practice.

Debtor‐Creditor Law And Practice.

Legal Forms.

Elder Law‐‐Guardianships and Conservatorships.

Municipal Court Practice.

Elder Law‐‐Guide to Medicaid Laws and Regulations.

Employment Law.

New Jersey Attorney Discipline.

Skills and Methods

Civil Trial Handbook.

Landlord and Tenant.

New Jersey Arrest, Search and Seizure.

Motor Vehicle Law and Practice.

Business Law Deskbook.

Motor Vehicle Law and Practice Forms.

Municipal Court Practice Manual.

Uniform Commercial Code Forms.

New Jersey Judicial Discipline.

Law of Mortgages.

New Jersey Insurance Codes Annotated.

Criminal Practice and Procedure.

Elements of an Action.

Criminal Law.

New Jersey Motions in Limine.

Local Government Law.

Land Use Law.

Available at NYCLA thru staff Westlaw

New Jersey Secondary Sources

Form Sets

New Jersey Forms Law and Business –

Seventeen volumes in print.

Available on NYCLA staff Westlaw. Primarily transactional forms

in

most areas of law.

New Jersey Pleading and Practice Forms –

Sixteen volumes in print.

Available on the NYCLA staff Westlaw.

New Jersey Judiciary –

Official forms

www.judiciary.state.nj.us/forms.htm

http://www.judiciary.state.nj.us/forms.htm

Finding Tools• Shepard’s (Lexis) and Keycite (West) are proprietary citation indexing

services.

• Shepard’s Citations ‐

the print counterpart of the online service available

on Lexis. There is no print counterpart to Keycite, the online West citation

service.

• Citation indexing developed because of the legal importance of precedent

and controlling authority. Researchers needed a quick reliable tool to

determine the value of authority cases, statutes, and regulations.

• Keycite/Shepard’s provides the researcher with: the parallel citation for

the authority case, a list of who cited the authority case, an analysis of

how the citing cases referred to the authority case, a reference

to which

issue in the authority case the citing case discusses, and a list of secondary

sources mentioning the authority case.

• Shepard’s/Keycite is used in the research phase and in the cleanup phase

of every project.

Finding Tools

• Index to Legal PeriodicalsIndexes over 1,000 Legal periodical.

• LegalTracIndexes over 1,600 law reviews, Bar journals and legal newspapers.

Offers full text of over 200 publications.

Finding Tools

• Digests (West)

An outline of the entirety of Case law for a particular jurisdiction.

Approximately 430 Topics, each with an outline as long or as short as the

subject matter requires.

Each point in the outline is given a unique sequential number, the “key

number”.

Every new case is analyzed to fit into this scheme, with every issue in each

case being assigned a Topic and Key number as part of a West Headnote.

When a case contains the issue the researcher is interested in, the digest

provides a way to find additional cases dealing with the same issue

The digest contains a subject index, a table of cases index, and a words

and phrases index.

Finding ToolsIndexMaster

An online resource containing the table of contents and index

pages from 5,000 legal texts and treatises.

One searches IndexMaster to determine which text or

treatise discusses a legal topic.

Search <“medicare liens> and find references to treatises

discussing the concept. The database points you to a source

but does not give you the source materials.

Available at the NYCLA Library

Legal PublishersGann Law Books

http://www.gannlaw.com/

New Jersey ICLE

http://www.njicle.com/

Lexis/Matthew Bender

http://www.lexisnexis.com/store

West

http://west.thomson.com/

http://www.gannlaw.com/

http://www.njicle.com/

http://www.lexisnexis.com/store

http://west.thomson.com/

Hammurabi’s Code

See:

http://www.wsu.edu/~dee/MESO/CODE.HTM

The Typical Path(s) of a Criminal Case through the Courts

Deborah D. Factor Assistant Prosecutor, Major Crimes, Hunterdon County

Faculty Biographies

Deborah D. Factor Earlier this month, Ms. Factor began a new position as Assistant Prosecutor, Major Crimes in the Prosecutor’s Office in Hunterdon County. Prior to this move, Ms. Factor focused her practice on criminal defense at Arsenault, Whipple, Fassett & Azzarello (AWFA). Before joining AWFA, she spent 11 years with the Morris County Prosecutor’s Office, during which she rose to the positions of Homicide Prosecutor, Vehicular Homicide Unit Chief, Domestic Violence Unit Chief, and Trial Division Chief. As such, she personally handled numerous complex cases, including more than 30 trials. Earlier in her career, Ms. Factor served 11 years as a California Deputy Attorney General in Los Angeles, San Diego, and San Francisco. In this role, she personally handled more than 50 trials and briefed more than 300 appeals, including six capital cases, resulting in more than 20 published opinions. Ms. Factor has been certified by the New Jersey Supreme Court as a Criminal Trial Attorney and teaches Trial Advocacy at Seton Hall Law School as an adjunct faculty member. She is also a recognized instructor for the National District Attorney’s Association, the New Jersey State Bar Association, the New Jersey Attorney General’s Office, and the Morris County Police and Fire Academy, and she is a requested speaker for many community organizations. Ms. Factor is also a court-approved, certified mediator for both family law and civil litigation cases. Ms. Factor is an honors graduate of the Southwestern University School of Law and the University of California at Irvine, and served as a student intern for the Honorable Joseph Richman, U.S.M.J., U.S. District Court for the District of Los Angeles in 1980.

Dan Jordan is the Director of Library Services at the New York County Lawyers’ Association Library. Dan is a graduate of Brooklyn College where he earned a BA degree in Speech and Theater with his concentration in TV/Radio studies. He received his JD from the University of the Pacific, McGeorge School of Law in Sacramento, California and he is a member of the California Bar. He received his Masters in Library Science from Pratt Institute. Dan began working in his law school library whereupon he was surprised to learn that the librarians on staff had law degrees as well as library science degrees. Before graduating from McGeorge School of Law he had determined to develop his career in librarianship as a lawyer/librarian, a decision that has given him great career satisfaction. In addition to his work at McGeorge School of Law, Dan has worked at the Brooklyn Law School Library, the Hofstra Law Library, and at the Touro Law Center Library where he served as the Head Law Librarian for a number of years. Over the past several years Dan has had an opportunity to work in several law firm libraries in New York City. He is very pleased and honored to be entrusted with leading the New York County Lawyers’ Association Library into a second century of serving the legal information needs of the Bar.

Gary N. Skoloff

Gary N. Skoloff is one of the founders of Skoloff & Wolfe, PC and is a nationally recognized family law practitioner. Mr. Skoloff, a past Chair of the Family Law Section of the American Bar Association, and past President of the New Jersey Chapter of the of the American Academy of Matrimonial Lawyers, has argued many of the leading and most high-profile matrimonial cases in the state, including the well-known surrogate mother case of Baby M.

Mr. Skoloff is the author of New Jersey Family Law Practice, now in its tenth edition, published by the New Jersey Institute for Continuing Legal Education, which is widely regarded as one of the foremost treatises on New Jersey family law. In addition, Mr. Skoloff has published numerous articles in the New Jersey Law Journal, New Jersey Lawyer, and various publications of the American Bar Association.

Mr. Skoloff has been a leader of the family law bar both in New Jersey and on the national level. In addition to serving as the Chair of the Family Law Section of the American Bar Association, Mr. Skoloff served as the Editor-in-Chief of the Family Advocate, a publication of the American Bar Association, Family Law Section. Mr. Skoloff continues to serve as a member of that Section’s Executive Council.

Mr. Skoloff served as Chair of the Family Law Section of the New Jersey State Bar Association and as a member of the Executive Committee of that Section. He is actively involved with both the Essex and Morris County Bar Associations. Mr. Skoloff was appointed by the Supreme Court to serve on its Family Law Committee.

Mr. Skoloff is a frequent lecturer on family law topics and has repeatedly lectured for the New Jersey Institute for Continuing Legal Education.

Mr. Skoloff has received the Trial Bar Award from the Trial Attorneys of New Jersey (TANJ), and has also received the prestigious Saul A. Tischler Award from the New Jersey State Bar Association Family Law Section. The Tischler is presented annually in recognition for making a substantial impact upon the development of family law and the legal profession. Additionally, Mr. Skoloff received the prestigious Clapp award from the Institute of Continuing Legal Education for his many years of service to the Institute.

Mr. Skoloff is listed in the Bar Register of Preeminent Lawyers and was recently named as one of New Jersey’s “Super 100” Lawyers in the May 2005 issue of New Jersey Monthly magazine, as chosen by peers and independent research.

Mr. Skoloff is an adjunct professor of Family Law at Seton Hall Law School and has also served as the President of the Rutgers Law School Alumni Association.