Articles Posted by James K. Estabrook

On May 21, 2020, the U.S. Department of Labor (“DOL”) announced a final rule allowing employers to post retirement plan disclosures online or furnish them to workers via email.  The rule is aimed at reducing administrative expenses for employers and making information more readily available to workers.

ERISA-covered retirement plans must furnish multiple disclosures each year to participants and beneficiaries. The exact number of disclosures per year depends on the specific type of retirement plan, its features, and in some cases the plan’s funding status.  To deliver these disclosures electronically, plan administrators were previously required to comply with the regulatory safe harbor established in 2002 under 29 CFR 2520.104b-1(c), which required that disclosures be reasonably calculated to ensure that workers actually received the information, including confirmation that the transmitted information was actually received (e.g., using return-receipt or notice of undelivered electronic mail features, conducting periodic reviews or surveys to confirm receipt of the transmitted information).

On August 31, 2018, Executive Order 13847, entitled Strengthening Retirement Security in America, was issued. The Order directed the DOL to review whether regulatory or other actions could be taken to make retirement plan disclosures more understandable for participants and beneficiaries and to focus on reducing the production and distribution costs that retirement plan disclosures impose on employers.  In October 2019, the Department published a proposed regulation with a solicitation for public comment.  In response to the commentary received, a final rule creating a new voluntary safe harbor was established.  The new safe harbor permits the following two optional methods for electronic delivery:

Will your assets pass to family if you die without a Will in New Jersey? Not necessarily. In some cases, a decedent’s property can actually escheat, or revert, to the State of New Jersey when the decedent has living relatives. The only way to ensure that your property is distributed according to your wishes is to execute a Will. While it may be tempting to let estate planning take a back burner to the hustle and bustle of everyday life, having a Will and other necessary estate planning documents helps your loved ones avoid additional hassles at the time of your passing.

Intestacy laws govern what happens to a person’s assets when he or she dies without a Will. Intestacy laws, however, do not interfere with assets that are jointly owned–those go to the survivor; or assets that are subject to a separate designation of beneficiary–those go to the designated beneficiary. In New Jersey, heirs must survive the decedent by at least 120 hours to inherit. New Jersey has adopted an intestacy system that only considers those relatives in the third branch and closer as “heirs” for the purposes of intestate succession. This is known as a parentelic system. The first branch includes the decedent, his children, grandchildren and great-grandchildren. The second branch includes decedent’s parents, siblings, and nieces and nephews down the line to great-grandnieces and great-grandnephews. The third and final branch of heirs for purposes of the New Jersey intestacy laws consists of the decedent’s grandparents and descendants of grandparents including aunts, uncles, and first cousins.

It is important to note that if a decedent dies without a Will and has a spouse or domestic partner, that spouse or partner may not inherit the full estate. This debunks the common misconception that if you pass without a Will, your spouse will automatically receive everything. The surviving spouse or partner’s share depends on many things including but not limited to whether the couple had children together, whether there are children from a prior marriage, and whether the decedent has parents who are still living.

The Department of Labor (“DOL”) and other federal agencies released updated model COBRA notices and expanded COBRA deadlines in an effort to reduce the risk of participants and beneficiaries losing benefits during the COVID-19 pandemic.

Updated Model COBRA Notices

Under the Consolidated Omnibus Budget Reconciliation Act (“COBRA”), an individual who was covered by a group health plan on the day before the occurrence of a qualification event, i.e. termination of employment or a reduction in hours that results in loss of coverage under the plan, may be able to elect COBRA continuation coverage upon that qualifying event. Under COBRA, group health plans must provide covered employees and their families certain notices explaining their COBRA rights. The first is a written notice of COBRA rights, called a “general notice,” which is given to an employee and spouse at the time of commencement of coverage. A group health plan must also provide an employee and spouse with an “election notice” upon a qualifying event, which outlines how to make an election under COBRA continuation coverage. The DOL has created model notices, which plans can use to satisfy these requirements under COBRA.

The Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), signed into law on Friday March 27, 2020, introduced the Paycheck Protection Program (the “PPP”) with the intended goal of preventing job loss and small businesses failure due to losses caused by the COVID-19 pandemic. The PPP was designed to support small business and employees by providing forgivable loans to employers if they maintained their employees and payroll. It was initially funded with $349 billion on a first come, first serve basis. Initial applications from small businesses and sole proprietorships opened on April 3, 2020 and all of this initial funding was exhausted within 13 days, or by April 15, 2020.

On Tuesday, April 21, 2020, the Senate passed an “interim” coronavirus relief Bill, titled the “Paycheck Protection Program and Health Care Enhancement Act” (the Senate Bill). The Senate Bill amends the CARES Act to (i) increase the amounts authorized for the PPP in accordance with Section 7(a) of the Small Business Act, increase the Economic Injury Disaster Loans (EIDL loans), and increase emergency grants under the CARES Act, and (ii) authorize additional funding for hospital and provider recovery and

coronavirus testing.

On April 1, 2020 James Estabrook and Kathleen Connelly of the firm’s Labor & Employment group hosted a webinar discussion for members of the Northern New Jersey and Southern New Jersey chapters of the National Electrical Contractors Association.

The webinar addressed questions regarding employee leave rights and benefits under the Families First Coronavirus Response Act (FFCRA).

You can watch and listen to a recording of the webinar on our firm’s YouTube channel here.


On March 27, 2020, the Coronavirus, Aid, Relief and Economic Security Act (the “CARES” Act) was passed, making it the third federal law to address the coronavirus (COVID-19) public health pandemic.  The Act, designed to provide additional relief to those affected by the pandemic, contains multiple provisions that specifically implicate multiemployer plans as set forth more fully below.

Coronavirus Related Distribution

The Act allows defined contribution plans to adopt provisions allowing for early distributions, up to a maximum of $100,000, for qualified individuals who have been adversely affected by the coronavirus pandemic.  Qualified individuals include the following:

As our clients age they often tell us they do not feel comfortable with their ability to continue to manage their financial affairs. They also express the unfounded fear that upon their death all their bank accounts will be frozen for months on end with no ability for anyone to access their funds to satisfy their obligations after death for the care of their home or loved ones. The common step taken by many is to put a family member or trusted friend on their accounts as joint owner so that in the case of a disability or death, funds will be readily accessible to satisfy the client’s obligations without interference.

Unfortunately, this step, although well-intentioned, has sometimes resulted in significant confusion, litigation and costs to the client’s estate because the creation of the joint account and the transfer of those assets to the surviving joint owner at death were not clearly understood by the elderly client or were not properly explained to her by the custodian of the account.

This miscalculation was recently demonstrated in an Appellate Division case, In the Matter of the Estate of Jones, No. A-2557-16T2, 2018 WL 4471686 (N.J. Super. Ct. App. Div. Sept. 19, 2018). Subsequent to the death of her husband, Erna M. Jones visited her investment broker with her middle daughter, Barbara, to open a new account distinct from the one she held jointly with her husband. Mrs. Jones executed a new account application that identified her daughter Barbara as a second party, and the box was checked that the account was “Joint Tenants with Right of Survivorship.” Subsequent to this account opening, Mrs. Jones managed the account, paid her bills and handled her investments with the representative of the brokerage company. At her death in 2015, her daughter Barbara claimed the account as hers as the surviving joint tenant. Barbara’s older brother, David, objected and filed a Complaint under New Jersey’s Multi-Party Deposit Account Act (“MPDAA”) alleging that the account was not held with right of survivorship but was merely a “convenience account,” and that all money in the account was to be distributed equally amongst Mrs. Jones’ surviving three children. Mrs. Jones’ Last Will and Testament provided that her estate was to be divided equally amongst her children and throughout her life, David stated, she had always treated her three children equally. David further alleged that Barbara had utilized undue influence in getting her mother to name her as a joint owner on the account.

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Years of experience in administering estates have taught us that the best way to avoid litigation after death is to plan during life. We have come to identify several “red flags” that, when not addressed during estate planning, are more often than not resolved in a courtroom. Not only does this mean that a judge, rather than the client, is ultimately deciding how the client’s property is disposed of, but the process can be lengthy, emotional, and expensive. With the possibility that attorney’s fees will be paid before any property is distributed to the family members, the lawyers may become beneficiaries of the estate when it is contested.

Unequal distribution of assets amongst children.

Clients who want to distribute their property to their children unequally are almost always asking for a fight. They may want to do this because they are estranged from a child or because they believe that one child “needs” more than another. The slighted child, however, may not agree with mom or dad’s decision. When this comes as a surprise to a child after the client’s death – and the parent is no longer here to explain the thought process and to act as mediator amongst the children – the slighted child feels like his or her only recourse is to hire an attorney.

What is Withdrawal Liability?

  • Withdrawal liability only accrues when the employer has contributed to a defined benefit (DB) plan and the DB plan is not fully funded.
  • It is equal to the employer’s share of a DB plan’s Unfunded Vested Benefits (UVB).
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