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Herten, Burstein, Sheridan, Cevasco,
Bottinelli, Litt, Toskos & Harz, LLC
REPORT FROM COUNSEL
SPRING 2005 ISSUE
NEW JERSEY'S NEW PROBATE LAW
By Andrew J. Cevasco, Esq. and Louis C. Tomasella,
Esq.
The last time the State of New Jersey performed a
major overall of its probate code, Albert Burstein was majority
leader of the New Jersey legislature. Despite the fact that Al is
now safely ensconced in Herten Burstein, the legislature has once
again addressed the probate code and made significant revisions
which will become effective February 27, 2005.
Of primary concern to our clients is the change to
New Jersey law regarding intestate succession. When an individual
dies without having prepared a Will, New Jersey law will determine
how the assets are distributed to family members.1 Under the law as
revised, a surviving spouse will receive the entire estate of a
decedent under two circumstances: (1) if all of the descendants
(children, grandchildren, etc.) are also descendants of the
surviving spouse, or (2) where there are no surviving descendants or
parents of the deceased spouse. Under the prior law, the surviving
spouse would only receive approximately 50% of the estate.
Where the deceased spouse is survived by parents
but no descendants or by descendants who are not descendants of the
surviving spouse (i.e., in a second marriage situation), the
calculation of the intestate share is more complicated. In the
former situation, the surviving spouse receives the first 25% of the
estate, but not less than $50,000 nor more than $250,000, plus
three-quarters of the balance of the intestate estate. The remaining
one-quarter of the residuary estate passes to the parents of the
deceased person. Where the decedent is survived by descendants who
are not also descendants of the surviving spouse, the surviving
spouse receives the first 25% of the estate, but not less than
$50,000 nor more than $200,000, plus one-half of the balance of the
intestate estate. The descendants receive the remaining one-half of
the Estate.
It is also interesting to note that in the event
there is no surviving spouse and no surviving descendants of the
deceased person's grandparents, then the entire estate will pass to
the decedent's stepchildren, or their descendants. This is also a
major change in the law.
Obviously, it is always better to have a Will. In
your Will you can tailor distribution of your estate to the persons
you wish to benefit as opposed to leaving the distribution to state
law. You can also establish controls or conditions for the receipt
of a legacy. In addition, New Jersey law still requires that the
administrator of the estate of a person who has died without a Will
must post a surety bond for the faithful performance of their
duties. This is an added expense to the estate that can easily be
avoided by waiving the bond requirement in a properly drafted Will.
Proper estate planning also requires review of
"non-probate" assets such as life insurance policies, 401(k) and IRA
accounts, annuities, etc. The new probate code also addresses such
instruments in the circumstance of divorce. Under the old probate
code, while divorce automatically revoked a Will, it did not
automatically change or revoke any disposition of non-probate
assets. Under the new law, divorce automatically causes revocation
of any disposition to a former spouse or a former spouse's relatives
as well as any fiduciary appointment such as an agent under Power of
Attorney or trustee under a trust. This is a major change in the law
intended to correct an area that is sometimes overlooked in the
emotionally charged context of a divorce action.
These are just some of the many changes to the New
Jersey probate code that will become effective on February 27, 2005.
Because of such changes as well as the continued change and
uncertainty as to the future of the federal estate tax law, it is
important that your estate plan be reviewed by a professional on a
periodic basis. Please do not hesitate to call us at any time for a
consultation with regard to your current estate plan.
1Although it is inconceivable that any of our
clients would not have Wills, the situation does sometimes arise.
NEWS FROM HERTENBURSTEIN.COM
- Our Firm celebrated the New Year by making
some very special announcements. Patrick Papalia, who started
with the Firm as an associate and then became a partner, as of
January 1, 2005 became an equity member. Patrick exemplifies the
hard work, legal skills and family values that characterize a
Herten Burstein attorney. Recently in addition to his active
litigation practice, Patrick found time to negotiate a
multi-million dollar lease for a new client Control Point
Solutions. The lease was for commercial space in Rutherford. The
client was so pleased with Patrick's performance that our firm
is now rendering significant legal services for this national
client. Entering as an equity member at this crucial time,
Patrick will provide welcomed insight to help guide the Firm in
its present expansion. Patrick resides in Glen Rock with his
lovely wife, Josephine and four daughters, Gabrielle 6; Alyssa
3; and twins Stephanie and Samantha who are 16 months old. The
Firm also announced that as of January 1st Thomas McGuire became
a partner. Following graduation from law school, Tom spent a
year as a law clerk in the New Jersey Superior Court Appellate
Division. He joined the Firm and initially worked primarily with
equity member, Terry Bottinelli, representing the Firm's
personal injury clients. Tom now has significant managerial
responsibility for the Firm's mass tort/products liability
litigation. Tom also assists attorneys who had matters before
the Appellate Division or New Jersey Supreme Court. More good
news came from Tom and his wife, Kathy, when they announced the
birth of their second daughter, Madison on February 10, 2005.
With older sister Lauren the McGuire family resides in River
Edge. The Firm celebrated these announcements with an office
party where all employees conveyed wishes of good luck to
Patrick and Tom.
- Perhaps you heard about the case of Antonia
Verni v. Lanzaro which was tried before the Honorable Richard J.
Donohue in the Bergen County Court House. This involved an
infant who received crippling injuries as a result of an
accident caused by an intoxicated New York Giant football fan.
The primary defendant, the food and liquor vendor at Giant
Stadium was found negligent because its employees continued to
provide alcohol to the defendant even after it was clear he was
intoxicated. As a result the jury awarded a $105,000,000 verdict
in favor of the infant plaintiff Antonia Verni. The guardian ad
litem for that infant plaintiff was our own Al Burstein who was
appointed by the Court in May 2004 to look out for the interests
of the infant plaintiff.
- We are proud to announce that founding equity
member Tom Herten, along with Terry Bottinelli, Arnold Litt and
Steven Harz have been identified by New Jersey Monthly Magazine
as "Super Lawyers" in the State of New Jersey. Less than 5% of
the State's attorneys are eligible to be considered for this
honor. Look for the article highlighting our four equity members
in the May edition of New Jersey Monthly Magazine.
- Terry Bottinelli was also recognized for his
judicial skills by the Borough of Closter. Presently serving as
the municipal court judge in Cresskill, Terry was reappointed by
the Borough of Closter at their reorganization meeting for an
additional three year term.
- Speaking about judicial skills, 2005 marks
the 15th year that Phil Sheridan has been sitting as the
municipal court judge for the Village of Ridgewood.
- January is a time when governmental entities
reorganize. The Borough of Waldwick held its reorganization
meeting on January 1st swearing in new council persons and
making professional appointments. Manny Toskos was once again
appointed the Borough Attorney for the municipality of Waldwick.
On January 3rd the Borough of Alpine reorganized and appointed
Terry Bottinelli its Borough Attorney. Shortly thereafter on
January 18th the Township of Washington Zoning Board of
Adjustment reorganized and appointed Manny Toskos its attorney.
This is a position he has held since 1977.
- January was a busy month. While welcoming a
new equity member and a new partner, the Firm also said goodbye
to office clerk Lisa Bottinelli. A graduate of Ramapo College,
Lisa is pursuing a career in education and has started her
student teaching in Midland Park. The Firm wishes her continued
success. Since the Firm was losing one person related to a
member, it was appropriate that another talented relative was
hired by the Firm. We would like to welcome Anne Tyburczy, an
experienced paralegal, who just happens to be Phil Sheridan's
niece.
- The Firm would like to congratulate its law
clerk Chris Karounos, a student at Rutgers Law School. Chris is
the recipient of the Trial Attorneys of New Jersey Scholarship
for 2005. He also was chosen to be on the Rutgers Law School
National Mock Trial team. Recently in the Nathan Baker Mock
Trial competition Chris was named the Best Oralist as he and his
teammate finished the competition undefeated. Chris will once
again serve as a summer associate our Firm this summer.
- The Firm would also like to recognize and
congratulate two members of our Wyeth team, Stephen Sugrue and
Holly Peterson. Stephen recently took, passed and was admitted
to the New York bar while Holly was admitted to the bar of her
home state of Texas.
- During the second week of February the Firm's
active involvement in the Bergen County Mock Trial program
concluded. This competition is part of a national mock trial
program. Bergen County has the largest participation of schools
in the State of New Jersey with 32 entries. As the Bergen County
Mock Trial Coordinator, equity member Manny Toskos along with
associate Craig Bossong and administrative assistant Denise
Stropole scheduled and ran 57 mock trials. Except for the finals
all mock trials took place in the Bergen County Court House
where each was judged by two attorneys. Needing over 100 lawyers
to act as judges our Firm stepped up to the plate with
participation by lawyers including Andy Cevasco, Arnold Litt,
Steven Harz, Patrick Papalia, Tom McGuire, Jason Shafron, Lou
Tomasella, Jodi Campbell, Angelo Bagnara, Nilufer DeScherer,
Daniel Gielchinsky, Tanja Fagan, Marina Hoppas, Damon
Kamvosoulis, and Stephen Sugrue. New Jersey Superior Court Judge
Harry Carroll and New Jersey Superior Court Judge Brian
Martinotti judged the Mock Trial Final which was televised live
over the Cablevision network. In a close decision, Torah Academy
of Teaneck edged out Immaculate Heart Academy of Washington
Township. The Mock Trial Final will be rebroadcast in May as a
Law Day event and can be seen by Cablevision subscribers on the
local public access station.
- There is excitement over the Firm moving its
offices. A tenant at 25 Main Street since the completion of the
construction of the building in 1984, the Firm is planning to
move to expanded space in 21 Main Street, right across the Plaza
from our present space. Our new space is also part of the Court
Plaza Complex and was most recently occupied by the County of
Bergen. Spearheaded by Managing Partner Andy Cevasco, the nine
equity members are putting the finishing touches to the plans.
The lease for approximately 22,000 square feet was negotiated by
Arnold Litt. Moving day is targeted for some time in April. The
Court Plaza Complex is known around the office as "Herten's
Complex" since he represented the City of Hackensack as its
redevelopment attorney during the 1980s and played an important
part in the transformation of a blighted area located at the
corner of Main and Essex Street in Hackensack into the major
legal complex it is today. We have been proud to be able to
continue to call the Court Plaza Complex our home.
- On March 7, 2005 Steven Harz, who chairs our
Labor Department, has been asked to lecture at the annual
conference of the prestigious New York Academy of Medicine. The
lecture will address employment issues pertinent to the medical
profession. Steve Harz, with the assistance of associate Jodi
Campbell, is also preparing a seminar on employment law. The
seminar is scheduled for April as part of the Bergen County Bar
Association Continuing Legal Education Program.
REAL ESTATE LAW DEVELOPMENTS
By Menelaos W. Toskos, Esq. and Arnold D. Litt,
Esq.
New Jersey Acting Governor, Richard J. Codey
signed legislation that provides qualified developers liability
protection against natural resource damage claims at brownfield
sites. The law provides that innocent companies are assured that
they will not be held liable for costs related to natural resource
injuries. Brownfield sites are contaminated properties which can be
developed under the Brownfield and Contaminated Site Remediation
Act. Development of the properties occurs pursuant to an agreement
with the New Jersey Department of Environmental Protection. Despite
this Act, developers still ran the risk of incurring liability for
on-site and off-site contamination of ground water supplies and
other natural resources. By providing this protection, the new law
encourages companies to undertake redeveloping old industrial sites
and to work with local and state officials to rebuild cities and
older suburbs.
The United States Supreme Court is also poised to
make a momentous decision affecting real estate development. In
litigation entitled Kelo et al. v. City of New London, the Court
will decide when a local government is allowed to seize private
property in order to make room for redevelopment projects such as
shopping malls and hotel complexes. This Connecticut case involves
the use of eminent domain to clear out non-blighted downtown areas
for large scale private development. At issue is the scope of the
Fifth Amendment which allows governments to condemn private property
for public use through eminent domain as long as the owner is given
just compensation. In the past, this often involved blighted
neighborhoods. However, recently state governments have enacted
redevelopment statutes. New Jersey has one which permits a property
that has been identified as an area in need of redevelopment to be
condemned. A property need not be blighted in order to be an area in
need of redevelopment. Instead a property can be identified as not
being used to the full of its potential. In the dispute before the
United States Supreme Court, Susette Kelo and several other
homeowners in Fort Trumble, a working class neighborhood of New
London, Connecticut filed a lawsuit after City officials announced
plans to bulldoze their homes in order to construct a riverfront
hotel, health clubs and offices. The plaintiffs argued that the
taking was not for a public purpose. The municipality contends that
these development plans do serve a public purpose such as boosting
economic growth and consequently outweigh the homeowner's property
rights. Local governments, property owners and developers are all
eagerly anticipating the Supreme Court's decision.
Finally, the New Jersey Supreme Court decided a
case which has implications for municipalities, developers and
property owners. The issue in DKM Residential Properties Corp. v.
The Township of Montgomery, et als. concerned whether or not the
Uniform Construction Code permitted a municipal construction code
official to cite a developer for violations under the Code after a
Certificate of Occupancy had been issued and the property sold. Up
until now, if there are defects in construction which were also
violations of the Uniform Construction Code and a Certificate of
Occupancy had been issued the property owner would have to file suit
directly against the builder. The New Jersey Supreme Court in its
decision changed everything.
The litigation involved a development of 475
high-end homes in Montgomery Township. Thereafter, several of the
homeowners complained that the installation of a stucco-like
exterior was not in accordance with the manufacturer's
specifications and as a result moisture had penetrated the exterior
causing decay, rot and mold accumulation.
On investigation the Township's Construction Code
Official determined that in fact the installation had not complied
with the manufacturer's specifications and consequently violated the
New Jersey Uniform Construction Code. Although the property was
sold, the Construction Code Official issued a notice of violation to
the builder who no longer owned any of the sites. The builder
contested the authority of the construction code official to issue
the notice of violation.
The New Jersey Supreme Court held that a municipal
Construction Code Official has the authority under the Uniform
Construction Code to cite a builder for construction code violations
even though a Certificate of Occupancy has been issued and the
property has already been sold. The Court stated that the Uniform
Construction Code is designed to protect the health, safety and
welfare of people and therefore its powers should be given liberal
interpretation so that the construction code official can act to
enforce its provisions. The Supreme Court reasoned that the
Legislature did not intend to restrict penalty enforcement to times
when the builder was in possession of the property. Up until this
decision, the property owners who had purchased property were
limited to pursuing remedies against the developer directly in
private lawsuits. This opens up a new avenue to correct defects that
are also violations under the Uniform Construction Code.
MORE BUSINESSES ELIGIBLE FOR C-EZ
The Internal Revenue Service introduced Schedule
C-EZ, a simplified expense form, for use by small businesses
preparing Form 1040. The IRS recently announced that it will expand
the number of small businesses eligible to use the form by 15%, or
about 500,000 businesses, beginning with tax year 2004.
The greater availability of Schedule C-EZ will be
accomplished by doubling the business expense threshold for
businesses that can use the form from $2,500 to $5,000. This change
could save as much as five million hours of paperwork for small
business taxpayers.
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