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Kenneth Albert Vercammen

Kenneth Vercammen’s Answers

362 total


  • Can they take my federal tax return for a civil judgment against me for unpaid license surcharges?

    Failure to pay surcharges for license to state resulted in civil judgment. Can they take my federal tax return? Or garnish it? I know once it gets into a bank account they can and I also know they can take my state refund. But mainly asking about ...

    Kenneth’s Answer

    this is not a criminal question. Best to eventually pay surcharge.

    See question 
  • Can I get my record expunged?

    I was arrested in 2007/2008 and went to prison for a official misconduct /theft deception charge I served time and have been out since I admit I did a horrible crime I am still paying the price I have not been able to get hired for a job.

    Kenneth’s Answer

    Offenses that cant be expunged
    2C:52-2 Indictable offenses.
    b. Records of conviction pursuant to statutes repealed by this Code for the crimes of murder, manslaughter, treason, anarchy, kidnapping, rape, forcible sodomy, arson, perjury, false swearing, robbery, embracery, or a conspiracy or any attempt to commit any of the foregoing, or aiding, assisting or concealing persons accused of the foregoing crimes, shall not be expunged.

    Records of conviction for the following crimes specified in the New Jersey Code of Criminal Justice shall not be subject to expungement: N.J.S.2C:11-1 et seq. (Criminal Homicide), except death by auto as specified in N.J.S.2C:11-5; N.J.S. 2C:13-1 (Kidnapping); section 1 of P.L.1993, c.291 (C.2C:13-6) (Luring or Enticing); section 1 of P.L.2005, c.77 (C.2C:13-8) (Human Trafficking); N.J.S.2C:14-2 (Sexual Assault or Aggravated Sexual Assault); N.J.S.2C:14-3a (Aggravated Criminal Sexual Contact); if the victim is a minor, N.J.S.2C:14-3b (Criminal Sexual Contact); if the victim is a minor and the offender is not the parent of the victim, N.J.S.2C:13-2 (Criminal Restraint) or N.J.S.2C:13-3 (False Imprisonment); N.J.S.2C:15-1 (Robbery); N.J.S.2C:17-1 (Arson and Related Offenses); N.J.S.2C:24-4a. (Endangering the welfare of a child by engaging in sexual conduct which would impair or debauch the morals of the child); N.J.S.2C:24-4b(4) (Endangering the welfare of a child); N.J.S.2C:24-4b. (3) (Causing or permitting a child to engage in a prohibited sexual act); N.J.S.2C:24-4b.(5)(a) (Distributing, possessing with intent to distribute or using a file-sharing program to store items depicting the sexual exploitation or abuse of a child); N.J.S.2C:24-4b.(5)(b) (Possessing items depicting the sexual exploitation or abuse of a child); N.J.S.2C:28-1 (Perjury); N.J.S.2C:28-2 (False Swearing); N.J.S.2C:34-1b.(4) (Knowingly promoting the prostitution of the actor's child); section 2 of P.L.2002, c.26 (C.2C:38-2) (Terrorism); subsection a. of section 3 of P.L.2002, c.26 (C.2C:38-3) (Producing or Possessing Chemical Weapons, Biological Agents or Nuclear or Radiological Devices); and conspiracies or attempts to commit such crimes.

    Records of conviction for any crime committed by a person holding any public office, position or employment, elective or appointive, under the government of this State or any agency or political subdivision thereof and any conspiracy or attempt to commit such a crime shall not be subject to expungement if the crime involved or touched such office, position or employment.

    c. In the case of conviction for the sale or distribution of a controlled dangerous substance or possession thereof with intent to sell, expungement shall be denied except where the crimes involve:

    (1) Marijuana, where the total quantity sold, distributed or possessed with intent to sell was 25 grams or less;

    (2) Hashish, where the total quantity sold, distributed or possessed with intent to sell was five grams or less; or

    (3) Any controlled dangerous substance provided that the conviction is of the third or fourth degree, where the court finds that expungement is consistent with the public interest, giving due consideration to the nature of the offense and the petitioner's character and conduct since conviction.

    d. In the case of a State licensed physician or podiatrist convicted of an offense involving drugs or alcohol or pursuant to section 14 or 15 of P.L.1989, c.300 (C.2C:21-20 or 2C:21-4.1), the court shall notify the State Board of Medical Examiners upon receipt of a petition for expungement of the conviction and records and information pertaining thereto.

    amended 1989, c.300, s.23; 1993, c.301; 1994, c.133, s.6; 2009, c.188, s.1; 2013, c.136, s.3.

    DWI DUI
    Traffic tickets
    Domestic violence complaint in family court

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  • What action needs to be taken against the Administrator, what is the process, and with whom? What are the statutes?

    Regarding Probate and Estate Administration. An administrator was assigned to my father's estate to act on my behalf (as Executrix) and in the best interest of the estate and the beneficiary (myself). The administrator neglected to provide monthl...

    Kenneth’s Answer

    no nj law or court rule requires an executor or administrator to provide monthly updates. If you are unhappy, file a Complaint for Accounting
    A Complaint for Accounting is filed in the superior court probate court 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 plaintiff's attorney's 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) The executor may be removed as the executor/administrator of the estate and that the plaintiff may 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 Executor’s 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.

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  • Is there a legal limit how much an executor can resist giving an accounting/closing an estate despite complaints against him?

    Articles on the subject of how to go about hiring a lawyer say that you should ask how many hours work similar cases have taken in the past. I have asked many estate litigation lawyers what is the upper limit of hours of work it takes to force an...

    Kenneth’s Answer

    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.
    Trust & Estates
    Compel an Accounting And Removal of an Estate Executor
    By Kenneth Vercammen
    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. If there is no will, state law determines which relatives can petition the surrogate to be appointed as "administrator" of the estate.
    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 (1988), 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 executor’s responsibility to diligently search for any "readily ascertainable" creditors.
    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
    A Complaint for Accounting is filed in the superior court probate court 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 plaintiff's attorney's 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) The executor may be removed as the executor/administrator of the estate and that the plaintiff may be named as Administrator C.T.A. or administrator of the estate.
    (6) That the executor be barred from spending any estate funds...

    See question 
  • How many hours work did you do to force the stubbornest executor you ever saw to provide an accounting and to close an estate?

    This is a question for experienced estate litigation specialists only.

    Kenneth’s Answer

    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.
    Trust & Estates
    Compel an Accounting And Removal of an Estate Executor
    By Kenneth Vercammen
    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. If there is no will, state law determines which relatives can petition the surrogate to be appointed as "administrator" of the estate.
    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 (1988), 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 executor’s responsibility to diligently search for any "readily ascertainable" creditors.
    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
    A Complaint for Accounting is filed in the superior court probate court 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 plaintiff's attorney's 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) The executor may be removed as the executor/administrator of the estate and that the plaintiff may be named as Administrator C.T.A. or administrator of the estate.
    (6) That the executor be barred from spending any estate funds.....

    See question 
  • Can children challenge beneficiary? What is the % of success?

    Father deceased, mother remarried for 3 yrs with separate finances, homes ect. Mother paid for all expenses including paying monthly mortgage of house owned by new husband. less than 3 months before mothers dies of illness not shared with childre...

    Kenneth’s Answer

    difficult to challenge a change in beni if person is competent. see Undue Influence to challenge a Will or Power of Attorney
    A grievance based upon undue influence may be sustained by showing that the beneficiary had a confidential relationship with the party who established the account. Accordingly, if the challenger can prove by a preponderance of the evidence that the survivor had a confidential relationship with the donor who established the account, there is a presumption of undue influence, which the surviving donee must rebut by clear and convincing evidence.

    [Estate of Ostlund v. Ostlund, 391 N.J. Super. 390, 401 (App. Div. 2007).]

    Although perhaps difficult to define, the concept "encompasses all relationships 'whether legal, natural or conventional in their origin, in which confidence is naturally inspired, or, in fact, reasonably exists.’” Pascale v. Pascale, 113 N.J. 20, 34 (1988) (internal citation omitted). "And while family ties alone may not qualify, parent-child relationships have been found to be among the most typical of confidential relationships." DeFrank, supra, slip op. at 13 (citing Ostlund, supra, 391N.J. Super. at 401).
    In the context of inter vivos gifts, "a presumption of undue influence arises when the contestant proves that the donee dominated the will of the donor or when a confidential relationship exists between the donor and done." Pascale, supra, 113 N.J. at 30 (internal citations omitted). "Where parties enjoy a relationship in which confidence is naturally inspired or reasonably exists, the person who has gained an advantage due to that confidence has the burden of proving that no undue influence was used to gain that advantage," In re Estate of Penna,322 N.J. Super. 417, 423 (App. Div. 1999), and "the donee has the burden of showing by clear and convincing evidence not only that 'no deception was practiced therein, no undue influence used, and that all was fair, open and voluntary, but that it was well understood.'" In re Estate of Mosery, 349 N.J. Super. 515, 522-23 (App. Div. 2002) (citing In re Dodge, 50 N.J. 192, 227 (1967)).

    The person receiving gifts and greater benefit had a burden to show no deception was practiced and that all of the transactions were fair, open and voluntary, and that they were well understood.

    One of the major cases dealing with undue influence was Haynes v. First National State Bank of New Jersey, 87 N.J. 163, 75-76 (1981). Here the Supreme Court held that the burden of proof establishing undue influence shifts to the proponent when a will benefits a person who stood in a confidential relationship to the decedent and there are suspicious circumstances, which need explanation. The suspicious circumstances need only be slight. Id. at 176. Moreover, when the evidence is almost entirely in the possession of one party and the evidence points to the proponent as asserting undue influence, a clear and convincing standard may be applied rather than the normal burden of proof of preponderance of the evidence. Id. at 183.

    Furthermore, the Haynes analysis was extended to situations in which there is a transfer of property where the beneficiary of the property and an attorney is on one side and the donor on the other. See Oachs v. Stanton, 280 N.J. Super. 478, 483 (App. Div. 1995).

    The court in Oachs determined that under circumstances such as these the donee bears the burden of proof to establish the validity of the gift, even in situations in which the donee did not dominate the decedent’s will. Id. at 485. This rule was established to protect a donor from making a decision induced by a confidential relationship the donee possesses with the donor. Id. Again, the burden is a clear and convincing standard. Id.

    The Supreme Court in Pascale v. Pascale, 113 N.J. 20, 31 (1998), also addressed this.

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  • How much would it cost me to set up a new will or trust?

    I am a 65yr old woman who owns two houses outright in NJ (I live in one and my son lives in the other). I need an updated will and advice on property transfer to my son or maybe a trust, and to specify contingent beneficiaries if he passes as well...

    Kenneth’s Answer

    Wills with estate planning between $600-$1,000,
    trusts more

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  • Can I refuse a drug test because I don't have an official court order?

    About two and a half months ago a friend and I were caught with marijuana and paraphernalia. I had nothing on me and I was not charged with anything but I did receive 6 months of random testing. My friend who was charged has only had to take an ev...

    Kenneth’s Answer

    obviously there is a charge or you would not be given 6 month testing. NJSA 2C:45-1. sets forth the Conditions of Suspension or Probation.

    a. When the court suspends the imposition of sentence on a person who has been convicted of an offense or sentences him to be placed on probation, it shall attach such reasonable conditions, authorized by this section, as it deems necessary to insure that he will lead a law-abiding life or is likely to assist him to do so. These conditions may be set forth in a set of standardized conditions promulgated by the county probation department and approved by the court.

    b. The court, as a condition of its order, may require the defendant:

    (1) To support his dependents and meet his family responsibilities;

    (2) To find and continue in gainful employment;

    (3) To undergo available medical or psychiatric treatment and to enter and remain in a specified institution, when required for that purpose;

    (4) To pursue a prescribed secular course of study or vocational training;

    (5) To attend or reside in a facility established for the instruction, recreation or residence of persons on probation;

    (6) To refrain from frequenting unlawful or disreputable places or consorting with disreputable persons;

    (7) Not to have in his possession any firearm or other dangerous weapon unless granted written permission;

    (8) (Deleted by amendment, P.L.1991, c.329);

    (9) To remain within the jurisdiction of the court and to notify the court or the probation officer of any change in his address or his employment;

    (10) To report as directed to the court or the probation officer, to permit the officer to visit his home, and to answer all reasonable inquiries by the probation officer;

    (11) To pay a fine;

    (12) To satisfy any other conditions reasonably related to the rehabilitation of the defendant and not unduly restrictive of his liberty or incompatible with his freedom of conscience;

    (13) To require the performance of community-related service.

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  • Is this case beatable and what should I do I'm going to trail be cuz I know I did not do that

    I been going threw a case for 3 years already I'm getting charge for my friend selling a gun to a informant I had no ideal he was doing that he was giving me a ride a told me get out real quick that he had to do something so now I'm getting charge...

    Kenneth’s Answer

    the jury will determine guilty or not guilty. ask questions of your current attorney

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  • What legal rights do I have?

    I loaned someone $1800.00 January 16th, 2015. I was told repayment would be by mid April 2015, two months later. To date I have not received anything after asking/pleading for restitution. The loan was made by a personal check and made out to "CAS...

    Kenneth’s Answer

    this is not criminal defense. call small claims court to discuss

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