Publications — Page 40 of 50 — Lindabury, McCormick, Estabrook & Cooper, P.C. Firm News & Events

Home » Publications

“Pet Trusts”: Providing For Your Pets After Death

Published on: October 12, 2016 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

In today’s society, it’s becoming increasingly common for our pets to be treated as part of the family…but what happens to your pet or pets upon your death when you are no longer there to care for them? In the eyes of the law, animals are considered property…so you can’t leave money directly to your pet. On January 19, 2016, the legislature passed the New Jersey Uniform Trust Code (NJUTC), which became effective as of July 17, 2016. As part of the NJUTC revisions, modifications were made to the rules regarding the creation and use of “Pet Trusts.”

Under the new law:

a. A trust may be created to provide for the care of an animal alive during the settlor’s lifetime. The trust terminates upon the death of the animal or, if the trust was created to provide for the care of more than one animal alive during the settlor’s lifetime, upon the death of the last surviving animal.

Dealing With Digital Assets During Life and After Death

Published on: October 12, 2016 | by Anne Marie Robbins

We live in a digital age. The advent of the personal computer, the rise of social media, online access to financial accounts and commerce, and the development of increasingly efficient programs and applications affording easy access to our finances, shopping, entertainment activities, and communications, have helped to create a world in which each of us likely spends a portion of most days online. The result is often a trove of digital assets that we have created, communicated, and stored. Some of these assets may have substantial inherent financial value (for example, frequent flyer miles and other award programs), some may have value because they are the means of accessing other assets (e.g., your bank account user name and password), and some may have sentimental value (such as your e-mail account holding personal correspondence).

Digital assets can present a challenge for fiduciaries. Items that 30 years ago would have had a physical existence, such as bank account statements, may now only exist in the digital realm. Because digital assets are intangible, identifying them and gaining access to them on behalf of their owners can be time-consuming and often, because this is a relatively new asset class and the rules governing it are still evolving, unsuccessful. Through planning, it is possible for individuals to take steps to protect what matters in their digital lives.

Most service providers include their policies regarding deceased users’ accounts in the terms of service provided when a user establishes the account, including what happens when the account owner dies. However, few people in practice pay attention to the provisions to which they are agreeing. It is sometimes the case that a service provider’s terms of service will cause all access to terminate as a result of an account owner’s death. Service providers are beginning to address the probability that many users would want someone to have access to the content the user has created or stored. For example, Google has an “Inactive Account Manager” function that allows users to determine what happens to the digital assets stored on Google sites after a period of inactivity. The user can request that Google either notify a specified individual and share information with that person, or can request that Google delete an account and its contents.

Restrictive Covenants Can Thwart Development In Some Cases

Published on: October 11, 2016 | by David R. Pierce

But Can Also Be Used As An Effective Tool To Enhance The Desirability And Market Value Of Other Developments

Many people believe that restrictive covenants are antiquities not to be seen in their lifetime, however, a recent unpublished Appellate Division case, Welch v. Chai Ctr. for Living Judaism, Inc., Nos. A-4088-13T1, A-4163-13T1, 2016 N.J. Super. Unpub. LEXIS 1906 (App. Div. Aug. 15, 2016), should serve as a reminder of their effects.

Restrictive covenants are restrictions contained in a deed which run with the land and either restrict the use of the land or prohibit specified uses. Thus, restrictive covenants can have critical impacts on proposed development of the land. On one hand, they can thwart proposed development, as in the Welch case, but alternatively, they can be used to enhance the desirability and market value of some developments, particularly residential developments.

Common Carriers Can Utilize Maritime Lien Law to Enhance Their Creditor Position in Chapter 11 Matters

Published on: September 23, 2016 | by Blake C. Width

In re: World Imports LTD (No. 15-1498)

Recently, the U.S. Court of Appeals for the Third Circuit issued a favorable decision for a secured creditor in the context of maritime liens on the prepetition goods of a Chapter 11 debtor, World Imports, Ltd., et al. The court noted the existence of a strong presumption that the creditor, OEC Group (“OEC”), a provider of non-vessel-operating common carrier transportation services, did not waive its maritime liens in connection with the prepetition goods. The court indicated there was clear documentation that the parties intended such liens to survive delivery of the goods, and evidence of an intention to preserve the lien after delivery. The contract stated that the “lien shall survive delivery, for all sums due under this contract or any other undertaking to which the merchant was party.” In support of the decision, the Court noted the “familiar doctrine” of admiralty courts that enables maritime liens to attach to property substituted for the original object of the lien. Although the lien arose by operation of law, the Court held that the parties were free to modify or extend the existing liens via contract, extending the lien from the prepetition goods to the “current goods” which included landed goods in OEC’s possession and those goods in transit for which OEC was to provide delivery in the near future.

The Court reasoned that the express agreement that OEC would not waive its liens upon delivery, constituted an ex ante agreement that OEC would retain the position already afforded by operation of maritime law. Essentially, the extension of the outstanding liens from prepetition goods to current goods functioned, in the aggregate, as it would have as to individual shipments, under maritime law.

Morristown New Jersey Adopts Paid Sick Leave Ordinance

Published on: September 22, 2016 | by John H. Schmidt, Jr.

As the State legislature continues to debate the merits and the provisions of a comparable state law governing paid sick leave, Morristown has moved forward. Morristown now becomes the 13^th municipality in New Jersey to adopt a paid sick leave ordinance that is applicable to all non-union, non-governmental employers operating within its city limits.

The Morristown ordinance is very similar to one that was earlier adopted by the City of Newark. It provides that all employers who have employees working in Morristown for at least 80 hours in a given benefit year, except any governmental employees or members of a construction union covered by a collective bargaining agreement, are obligated to comply with the ordinance that provides:

Employees accrue one hour of paid sick time for every 30 hours worked.

Deadline Approaching for Real Estate Tax Exemption Filing

Published on: September 21, 2016 | by Roger Mehner

November 1 is an important date for non-profit corporations and associations seeking exemption from real property taxation for their owned real estate. An application for exemption in the first instance with respect to a particular property is made by filing an Initial Statement (on the State prescribed form) with the municipal Tax Assessor on or before November 1 of the pretax year. Under New Jersey law, tax exemption is based on the actual use and ownership of the property on October 1 of the pretax year. In order to be eligible for tax exemption in 2017, property must be owned and actually used by an organization entitled to exemption for an exempt purpose on October 1, 2016. The deadline is a real one; the Assessor has no obligation to honor an Initial Statement filed after November 1.

Once exemption is granted pursuant to the filing of an Initial Statement, the owner must update the filing on or before November 1 of the third year after filing the Initial Statement, and every three (3) years thereafter, by filing a Further Statement (also on a State prescribed form). Again, the November 1 deadline is important and an owner can lose its exemption by failing to meet the filing deadline.

Once an Initial Statement is filed and approved, most Tax Assessors routinely send owners of exempt property a request for a Further Statement every three (3) years. However, failure to receive notice from the Assessor does not excuse the owner from filing. Accordingly, owners of exempt property should take care to diary and keep track of this important filing deadline.

Step By Step Guide For When Your Spouse Files For Divorce

Published on: September 6, 2016 | by James McGlew, II

Whether you have been served with notice that your spouse has filed for divorce, or if you are contemplating filing for divorce yourself, there are important steps anyone facing this scenario should undertake.

The first is to stay calm. This is obviously easier said than done but it is important as many people do or say things while processing this major life change that they later come to regret.

If you have children, take whatever steps necessary to distance them from the proceedings you or your spouse are considering. At this early stage of the process there is no benefit to advise them of the situation and they should not be involved in any discussions between you and your spouse. Children should never be compelled to “choose sides” regardless of their age.

“Inherently Beneficial Uses” Get Favored Zoning Treatment – What Non-profits and Community Organizations Need To Know

Published on: August 30, 2016 | by Roger Mehner

Are you a non-profit or other community oriented organization looking to expand or relocate your facilities? The law may give you a distinct advantage in obtaining the necessary zoning approvals. The dynamics of growth, evolving missions and changing communities can lead to a need for expansion to meet current demand for services; in some cases the organization may need to relocate facilities where there is insufficient room to expand, or when changes in communities make relocation appropriate to continue the mission of the organization.

Non-profit agencies and other community based organizations often have facilities which have existed for long periods of time, predating current zoning requirements. Existing locations often no longer permit the organization’s use, rendering the organization a “prior non-conforming use” under the law. Even if the organization seeks to relocate its facilities, there are often few locations in any town where such uses are permitted, making the availability of such locations limited and expensive.

Whenever a non-conforming use seeks to expand, or where an owner seeks to construct a use not permitted in a zone, a use variance is required under N.J.S.A. 40:55D-70(d). Such variances require a five vote super-majority of the Board of Adjustment to be approved. The applicant must affirmatively prove “special reasons” justifying grant of the variance, the so-called “positive criteria” under the statute. In addition, the applicant must also prove the “negative criteria” under the statute by showing that the variance can be granted without substantial detriment to the zone plan, zoning ordinance or public good.

Alimony in New Jersey

Published on: August 10, 2016 | by James McGlew, II

This September will mark two years since the New Jersey legislature made sweeping revisions to the state’s alimony statutes. The legislature amended the alimony statutes in order to address several pressing issues incluing:

making it easier if to reduce alimony payments when a former spouse loses their employment;
imposing new restrictions on individuals who cohabit with another while receiving alimony from their former spouse;

Downzoning Ordinances: Limiting Development and Preserving Open Space

Published on: July 27, 2016 | by David R. Pierce

Downzoning of lands at the municipal level as a way of limiting development and preserving open space and agricultural land has been taking place in New Jersey for years. Downzoning is the practice of increasing the required lot size for the development of a single family home or, in other words, reducing the density of development permitted under the existing zoning ordinances. These zoning ordinances are typically “hot button” issues which often spawn litigation regarding their validity under the Municipal Land Use Law (N.J.S.A. 40:55D-1 et seq.). Most downzoning litigation does not involve a challenge to the validity of the ordinance as a whole (although that certainly does occur), but in most instances involve a challenge to the validity of the ordinance as applied to one or more specific parcels of property. While a zoning ordinance may be valid in general terms that does not preclude a judicial determination that the ordinance in question is not valid as applied to a specific and distinct parcel of property.

New Jersey law on this issue began to coalesce with the case of Bow & Arrow Manor v. Town of West Orange, 63 N.J. 335 (1973) in which the New Jersey Supreme Court found that although zoning ordinance changes regarding the uses permitted in various zones were valid in general, they were nevertheless invalid as applied to specific properties that were the subject of the lawsuit. Fourteen years later, in Zilinsky v. Zoning Bd. of Adj. of Verona, 105 N.J. 363 (1987), the New Jersey Supreme Court sustained the validity of an ordinance imposing off-street parking requirements in a residential zone and, more particularly, the requirement that one of the two required off street parking spaces had to be provided in a garage. While these two cases did not directly deal with downzoning issues, the legal principles developed in these cases regarding whether or not a zoning ordinance provision was sustainable formed the foundation for the later review of zoning ordinances involving downzoning.

In Riggs v. Long Beach Township, 109 N.J. 601 (1988) the New Jersey Supreme Court invalidated a zoning ordinance that changed the permitted density from 1 unit per five thousand square feet to 1 unit per ten thousand square feet. The court reasoned that the zoning ordinance was enacted for the purpose of depressing the value of the plaintiff’s land so that the municipality could acquire it cheaply. In doing so, the court developed a four part test for analyzing the validity of a zoning ordinance that is challenged: