James K. Estabrook Archives — Lindabury, McCormick, Estabrook & Cooper, P.C. Firm News & Events

The Responsibilities and Duties of an Executor

Published on: February 6, 2023 | by James K. Estabrook and Elizabeth Candido Petite

After someone passes away, their estate must be administered. This is true whether the person was worth $10,000 or $10 million. The process of administering the estate is often the same regardless of its value. This article discusses the basic process of estate administration and the duties of the executor, who is the person or persons responsible for the process.

Appointment to act on behalf of the estate

The first step for an executor (or administrator, if there is no Will) is to be appointed by the local Surrogate’s Court as executor. In New Jersey, this is a simple process where the Will and death certificate are presented to the court, along with the names and addresses of the next-of-kin and beneficiaries named in the Will. Assuming everything is in order, the Surrogate will admit the Will to probate and issue a Certificate of Letters Testamentary to the executor, which serves as his or her official appointment to act on behalf of the estate. The executor is then responsible for notifying all heirs and beneficiaries that probate has been completed.

The Best Lawyers in America® Names Lindabury Attorneys to 2023 Listing

Published on: August 18, 2022 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

Lindabury, McCormick, Estabrook & Cooper, P.C. is please to announce that 15 of the firm’s have been selected for inclusion in The Best Lawyers in America 2023.

Steven Backfisch was recognized as Best Lawyer in America for Litigation in Labor & Employment.
John R. Blasi was recognized as Best Lawyer in America for Trust & Estates.

U.S. Supreme Court Issues Opinion on ERISA Breach of Fiduciary Duty

Published on: February 15, 2022 | by James K. Estabrook and Elizabeth Engert Manzo

On Monday, Jan. 24, 2022, in the case Hughes vs. Northwestern, the U.S. Supreme Court ruled that a fiduciary’s duty to monitor investments in defined contribution retirement plans means the plan cannot include non-prudent investments. In reaching this conclusion, the Court recognized that fiduciaries have an ongoing obligation to monitor plan investments. Simply offering participants a diverse menu of investment options is not sufficient to insulate fiduciaries from potential liability.

The Holding in Hughes v. Northwestern.

In Hughes, employees of Northwestern University participated in two defined contribution 401(k) plans offered by the University. The employees alleged that the trustees of the plans breached their fiduciary duty to the participants by “(1) failing to monitor and control recordkeeping fees, resulting in unreasonably high costs to plan participants; (2) offering mutual funds and annuities in the form of “retail” share classes that carried higher fees than those charged for otherwise identical share classes (institutional share class) of the same investments; and (3) offering investment options that were likely to confuse investors.” Both the trial court and the Seventh Circuit Court of Appeals accepted Northwestern’s argument that even if some options were not prudent, there was no violation of ERISA’s prudence standard because the plans offered a diverse menu of investment options that the plaintiffs agreed were prudent.

Workers’ Compensation Presumption Reactivated with New Jersey’s Issuance of New Public Health Emergency

Published on: January 25, 2022 | by James K. Estabrook

UPDATE: On March 7, 2022, Governor Murphy once again lifted the COVID-19 public health emergency, and consequently the presumption created by SB2380.

In an effort to combat the rapidly spreading COVID-19 Omicron variant, on January 13, 2022, Governor Murphy reactivated a presumption that essential workers’ contraction of the virus is work-related for purposes of workers’ compensation claims.

The Rise and Fall of The Workplace Presumption for Essential Workers. To establish a compensable COVID-19 claim under New Jersey’s Workers’ Compensation Act, the employee must show that he/she contracted the virus directly from the workplace. The difficulty in establishing where an individual contracts a communicable disease explains the scarcity of compensable seasonal influenza workplace claims. However, on September 14, 2020, Governor Murphy signed SB2380, retroactive to March 9th, removing this requirement in COVID-19 cases for essential workers during a public health emergency declared by the Governor, by creating a presumption that the employee contracted the virus in the workplace. Under the bill, the presumption of workplace contraction can only be refuted by a preponderance of the evidence showing the essential worker was not exposed to COVID-19 in the workplace.

SCOTUS Blocks OSHA Vaccination Mandate for Small Employers but Upholds CMS Mandate for Healthcare Facilities

Published on: January 14, 2022 | by James K. Estabrook, Elizabeth Engert Manzo and Kathleen M. Connelly

On November 4, 2021, the Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) requiring employers of 100 or more to adopt COVID-19 policies, maintain rosters of vaccinated employees, and provide paid time off to employees to vaccinate or recover from its effect. These mandates were to go into effect on January 10, 2022. By February 9, 2022, employers were to require employees to show proof of COVID-19 vaccination or undergo weekly testing.

On that same date the Centers for Medicare & Medicaid Services (CMS) issued an interim rule mandating COVID-19 vaccination and other requirements for workers in most healthcare settings participating in Medicare and Medicaid programs by January 22, 2022.

Legal challenges quickly wound their way through the federal courts, leaving businesses in limbo about their obligations to implement these vaccination and testing mandates. On January 13, 2022 the Supreme Court of the United States (SCOTUS) issued decisions on both mandates, imposing a stay on the OSHA ETS vaccination and testing mandates, but upholding the vaccination mandate and other aspects of the CMS for healthcare facilities.

When is Money from Family Considered a Loan Versus a Gift?

Published on: October 20, 2021 | by James K. Estabrook

It is very common for parents to provide funds to their children over their lifetime, but are these transfers gifts or loans? A recent ruling in the Tax Court, Estate of Bolles v. Commissioner, T.C. Memo. 2020-71, 119 T.C.M. (CCH) 1502 (June 1, 2020), highlights the importance in estate planning of differentiating between loans and gifts.

Mary Bolles was a loving mother of five children whom she tried to treat equally. Her practice was to keep a record of her advances to and the occasional repayments from each child. Based on her intent and the advice of tax counsel, she treated the advances as loans. She forgave the “debt” account of each child every year to the extent of the annual gift tax exclusion amount. According to the Tax Court, her practice would have been noncontroversial had she not advanced substantial funds to one son, Peter.

When Peter ran into financial difficulties with his architectural business, Mary supported him and between 1985 and 2007 she transferred $1,063,333 to Peter or for his benefit.

Final “Transparency Rule” Issued for Group Health Plans and Insurers

Published on: November 30, 2020 | by James K. Estabrook and Elizabeth Engert Manzo

On October 29, 2020, the Department of Health and Human Services (“HHS”), the Department of Labor (“DOL”), and Department of Treasury (“DOT”) collaborated to issue a final “transparency rule” aimed at providing greater information to consumers, thereby allowing them to explore different healthcare options and avoid surprise billing for services rendered. Additionally, the rule requires the public disclosure of negotiated rates for in-network providers and amounts allowed for out-of-network providers.

Disclosure of Provider Rates

Under the rule, non-grandfathered health plans and insurers must publish their negotiated rates and allowable out-of-network charges on a public website, which is to be updated monthly through three machine-readable files. The website must be publicly available, accessible without charge, and cannot require a user account, password, or other credentials, or submission of personally identifiable information to access the files. Specifically, the files will reflect negotiated rates for in-network services, historical payments to and billed charges from out-of-network providers, and in-network negotiated rates. The files must also show historical net prices for covered prescription drugs at the pharmacy level.

Lindabury Attorneys Named 2021 Best Lawyers and Lawyer of the Year

Published on: August 20, 2020 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

We are proud to announce 11 of our attorneys have been named to the 2021 Best Lawyers® list, two of which were named “Lawyer of the Year.” This recognition in The Best Lawyers in America^© 2021, identifies each for their leading legal talent in their corresponding practice areas.

The following Lindabury attorneys were named as Best Lawyers honorees:

Steven Backfisch: Litigation – Labor and Employment

IRS Announces Additional Guidance for Coronavirus-Related Distributions and Loans

Published on: June 29, 2020 | by James K. Estabrook and Elizabeth Engert Manzo

On June 19, 2020, the IRS released Notice 2020-50, which provides additional guidance and relief for retirement plan participants taking coronavirus-related distributions and loans under the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”). Under the CARES Act, “qualified individuals” may take coronavirus-related distributions of up to $100,000 from their eligible retirement plans without being subject to the 10% additional tax on early distributions. In addition, a coronavirus-related distribution can be included in income ratably over the three-year period commencing with the year of distribution and the individual taking the distribution has three years to repay the distribution to the plan, or roll it over to an Individual Retirement Account (“IRA”) or other qualified retirement plan, with the effect of reversing the income tax consequences of the distribution. In addition, the CARES Act allows plans to suspend loan repayments due from March 27, 2020 through December 31, 2020 and further allows for an increase in the dollar amount on loans made between March 27, 2020 and September 22, 2020 from $50,000 to $100,000. Notice 2020-50 expands the definition of qualified individuals under the Act and provides additional, clarifying guidance regarding coronavirus-related distributions and loans.

Expansion of the Definition of “Qualified Individual”

Under the original language of the CARES Act, a qualified individual included the following persons:

The Paycheck Protection Program Flexibility Act Makes Critical Changes to the Paycheck Protection Program

Published on: June 9, 2020 | by James K. Estabrook

On June 5, 2020, the Paycheck Protection Program Flexibility Act of 2020 (“PPPFA”) was signed into law. The PPPFA is aimed at providing borrowers with additional flexibility to maximize forgiveness of loans received under the Paycheck Protection Program (“PPP”) established as part of the CARES Act. The following provisions of the PPPFA are highlighted below for your consideration:

Extension of Application Period: The PPPFA extends the final date by which PPP loans can be made from June 30, 2020 to December 31, 2020. However, a congressional letter clarifies that June 30, 2020 remains the last day for accepting and approving PPP loans. Although additional guidance may be issued on whether applications will be accepted until December 31, 2020, employers should err on the side of caution and apply for loans prior to June 30, 2020.
Repayment Term is Extended: For those PPP loans originated on or after the date of enactment of the PPPFA, the repayment term for the unforgiven portion of the loan is extended from two to not less than five years. However, borrowers and lenders may mutually agree to expand the repayment period under existing loans (entered into prior to enactment of the PPPFA).