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  • Nov 20, 2020Whose Decision Is It Anyway: Cognitive Decline and the Ability to Sign Legal Documents

    Shana Siegel, a Member of law firm Norris McLaughlin, P.A., and Chair of its Elder Care & Special Needs Law Practice Group, and Lori Kayne, the firm’s Geriatric Social Worker, will present the free webinar, “Whose Decision Is It Anyway: Cognitive Decline and the Ability to Sign Legal Documents,” hosted by Aveanna Healthcare Concierge Services and co-sponsored by Lester Senior Housing, A JCHC Community.

    About the Cognitive Decline and the Ability to Sign Legal Documents

    This webinar will define “mental capacity” and outline medical conditions that can influence capacity, address common legal documents and the degree of capacity needed to sign them, and discuss methods to maximize capacity.

    When: Tuesday, December 1, 2020

    2:00 – 3:00 p.m.

    Registration: Eventbrite

    About Shana Siegel

    Shana Siegel concentrates her practice in the area of elder law, focusing on representing seniors, individuals with special needs, and their families in connection with life care planning, public benefits, trust and estate planning, and long-term care advocacy. As one of the few Certified Elder Law Attorneys (CELA) in northern New Jersey to be certified by the National Elder Law Foundation (NELF), Shana has extensive experience in probate and estate administration, asset preservation, supplemental and special needs trusts, planning for disability, guardianship and estate litigation, resident rights, health care decision-making, Medicare, Medicaid, and health insurance appeals.

    Shana has been involved in health and long-term care issues for over 25 years. She is a past president of the New Jersey Chapter of the National Academy of Elder Law Attorneys (NAELA), where she regularly met with legislators and government officials on behalf of the elder law bar and their clients. In 2015, Shana was invited to join NAELA’s prestigious Council of Advanced Practitioners (CAP). Additionally, Shana is a member of the New Jersey Women Lawyers Association, the New Jersey State Bar Elder & Disability Law Section, and the Life Care Planning Law Firms Association. She is active with the Long Term Living Association, several local chambers of commerce, and Jewish philanthropies.

    About Lori Kayne

    Lori Kayne has been working as a geriatric social worker in the health care field for over 20 years. At Norris McLaughlin, she works in collaboration with an elder care attorney to develop a detailed life care plan that addresses the health, safety, and care concerns of clients as they impact their legal and financial planning. Lori and the attorney work with clients and their families for an extended period helping them navigate the health care maze and plan proactively.

    Lori has previously worked as a Geriatric Care Manager for Generations Counseling and Care Management and Senior Bridge, where she conducted geriatric assessments, developed plans of care, and provided supportive counseling to assist clients with adjustments to illness and changes in lifestyle. She also worked as a discharge planner in a variety of hospital and nursing home settings.

    Posted in: Elder Care & Special Needs Law, Estate Planning & Administration, Events, Lori Kayne, Shana Siegel | Tags: , , ,

  • Nov 05, 2020Norris McLaughlin Has Been Named a Tier 1 Metropolitan “Best Law Firm” in 11 Practice Areas by U.S. News – Best Lawyers® in 2021

    The law firm of Norris McLaughlin, P.A., is proud to announce that it has been selected for inclusion in eleven practice areas for the 2021 “Best Law Firms” metropolitan rankings by the U.S. News & World Report and Best Lawyers®. The firm’s full listing of First Tier Metropolitan rankings is as follows:

    • Arbitration
    • Bankruptcy and Creditor Debtor Rights/Insolvency and Reorganization Law
    • Commercial Litigation
    • Energy Law
    • Environmental Law
    • Litigation – Construction
    • Litigation – Environmental
    • Mediation
    • Product Liability Litigation – Defendants
    • Trusts & Estates Law
    • Workers’ Compensation Law – Employers

    Norris McLaughlin has also received a Tier 2 Metropolitan ranking in the following practice areas:

    • Banking and Finance Law
    • Communications Law
    • Corporate Law
    • Family Law
    • Family Law Mediation
    • Litigation – Bankruptcy
    • Natural Resources Law

    “This listing of Norris McLaughlin is an outstanding achievement for the practice groups and dedicated attorneys who serve our clients. The rankings represent independent substantiation of the value we provide our clients, producing real results through efficient and diligent counsel,” said John N. Vanarthos, Chairman of the firm.

    About U.S. News – Best Lawyers® “Best Law Firms”

    From the start, the mission of “Best Law Firms” has been to help guide referring lawyers and clients – from the country’s largest companies needing corporate legal advice to individuals needing a divorce or a will – issues with bet-the-company implications or potentially life-changing results respectively. The U.S. News – Best Lawyers® “Best Law Firms” rankings are based on a rigorous evaluation process that includes the collection of client and lawyer evaluations, peer review from leading attorneys in their fields, and review of additional information provided by law firms as part of the formal submission process. For more information, including methodology, and the full listing, see bestlawfirms.usnews.com.

    About Norris McLaughlin

    Norris McLaughlin is a multi-practice, commercial law firm with offices in New Jersey, New York, and Pennsylvania. Though regionally based, the firm has grown its capabilities to include counseling on matters of national and international scope. Boasting a team of more than 120 attorneys practicing in over 25 legal disciplines and industry-focused groups, Norris McLaughlin is well-positioned to represent a wide range of client segments, including small business, middle-market companies, and Fortune 500 corporations, as well as the private individuals and families who own and run them.

    Once a humble two-man practice in Somerville, New Jersey, the firm has leveraged a multi-disciplinary legal practice with a deep dedication to superior client service to become the largest law firm in Somerset County and one of the Top 20 law firms based in New Jersey. To respond to the changing needs of the firm’s clients and the business community, Norris McLaughlin expanded its geographic reach by merging with like-minded firms in New York City (1999) and the Lehigh Valley in Pennsylvania (2009). As a result of this expansion, and with the resources of international law firm networks providing additional bench strength and service capability, Norris McLaughlin now delivers a total package of legal solutions to represent clients wherever they are and whatever their legal issues may be.

    Posted in: Banking & Financial Services, Bankruptcy & Creditors' Rights, Business Law, Construction Law, Environmental, Estate Planning & Administration, Litigation, Matrimonial & Family Law, News, Products Liability Defense, Solar Energy, Telecommunications, Workers’ Compensation—Pennsylvania Office | Tags: , , , , , , , , , , , ,

  • Oct 07, 2020Special Needs Trusts and Beyond: Understanding Planning for Individuals with Disabilities

    Shana Siegel, a Member of law firm Norris McLaughlin, P.A., and Chair of its Elder Care & Special Needs Law Practice Group, will present the webinar, “Special Needs Trusts and Beyond: Understanding Planning for Individuals with Disabilities,” co-hosted by the Federal Bar Association and myLawCLE.

    Understanding Planning for Individuals with Disabilities

    Discussion topics will include:

    • How to identify when special needs planning is needed
    • ABLE Accounts
    • Considering trust provisions: revocability, trust protectors and advisors, distribution language
    • First-party special needs trusts
    • Planning with Retirement Accounts and Life Insurance
    • Pooled Trusts
    • SECURE Act
    • Supplemental benefits trusts vs. discretionary trusts
    • Trust administration and distributions
    • Understanding how public benefits impact special needs planning
    • Other issues to address in planning for an individual with a disability

    When: Thursday, October 22, 2020

    2:00 – 3:00 p.m.

    Registration: mylawcle.com

    This program is being offered as a live webcast and on-demand video for $95. One CLE credit is available.

    About Shana Siegel

    Shana Siegel concentrates her practice in the area of elder law, focusing on representing seniors, individuals with special needs, and their families in connection with life care planning, public benefits, trust and estate planning, and long-term care advocacy. As one of the few Certified Elder Law Attorneys (CELA) in northern New Jersey to be certified by the National Elder Law Foundation (NELF), Shana has extensive experience in probate and estate administration, asset preservation, supplemental and special needs trusts, planning for disability, guardianship and estate litigation, resident rights, health care decision-making, Medicare, Medicaid, and health insurance appeals.

    Shana has been involved in health and long-term care issues for over 25 years. She is a past president of the New Jersey Chapter of the National Academy of Elder Law Attorneys (NAELA), where she regularly met with legislators and government officials on behalf of the elder law bar and their clients. In 2015, Shana was invited to join NAELA’s prestigious Council of Advanced Practitioners (CAP). Additionally, Shana is a member of the New Jersey Women Lawyers Association, the New Jersey State Bar Elder & Disability Law Section, and the Life Care Planning Law Firms Association. She is active with the Long Term Living Association, several local chambers of commerce, and Jewish philanthropies.

    Posted in: Elder Care & Special Needs Law, Estate Planning & Administration, Events, Shana Siegel | Tags: , ,

  • Sep 25, 2020Personal Values: Advance Care Planning and Dementia

    Shana Siegel, a Member of law firm Norris McLaughlin, P.A., and Chair of its Elder Care & Special Needs Law Practice Group, and Lori Kayne, the firm’s Geriatric Social Worker, will co-present the free webinar, “Personal Values: Advance Care Planning and Dementia,” hosted by the New Jersey Health Care Quality Institute as part of their Conversation of Your Life (COYL) series.

    Advance Care Planning and Dementia

    Meant for caregivers, patients, and families, Shana and Lori will be joined by Kim Polachek, Memory Care Advisor at Arden Courts Of Whippany, and Michele Smith, Hospice Liaison of Compassionate Care Hospice, to address how to provide for a loved one with Dementia. They will discuss the importance of communicating wishes before it is too late and the various options available to help document those wishes.

    When: Thursday, October 1, 2020

    noon – 1:00 p.m.

    Registration: njhcqi.org

    About Shana Siegel

    Shana Siegel concentrates her practice in the area of elder law, focusing on representing seniors, individuals with special needs, and their families in connection with life care planning, public benefits, trust and estate planning, and long-term care advocacy. As one of the few Certified Elder Law Attorneys (CELA) in northern New Jersey to be certified by the National Elder Law Foundation (NELF), Shana has extensive experience in probate and estate administration, asset preservation, supplemental and special needs trusts, planning for disability, guardianship and estate litigation, resident rights, health care decision-making, Medicare, Medicaid, and health insurance appeals.

    Shana has been involved in health and long-term care issues for over 25 years. She is a past president of the New Jersey Chapter of the National Academy of Elder Law Attorneys (NAELA), where she regularly met with legislators and government officials on behalf of the elder law bar and their clients. In 2015, Shana was invited to join NAELA’s prestigious Council of Advanced Practitioners (CAP). Additionally, Shana is a member of the New Jersey Women Lawyers Association, the New Jersey State Bar Elder & Disability Law Section, and the Life Care Planning Law Firms Association. She is active with the Long Term Living Association, several local chambers of commerce, and Jewish philanthropies.

    About Lori Kayne

    Lori Kayne has been working as a Geriatric Social Worker in the healthcare field for over 20 years. At Norris McLaughlin, she works in collaboration with an Elder Care Attorney to develop a detailed Life Care Plan that addresses the health, safety, and care concerns of her clients as they impact their legal and financial planning. Lori and the attorney work with clients and their families for an extended period helping them navigate the health care maze and plan proactively.

    Lori has previously worked as a Geriatric Care Manager for Generations Counseling and Care Management and Senior Bridge, where she conducted geriatric assessments, developed plans of care, and provided supportive counseling to assist clients with adjustments to illness and changes in lifestyle. She also worked as a Discharge Planner in a variety of hospital and nursing home settings.

    Posted in: Elder Care & Special Needs Law, Estate Planning & Administration, Events, Lori Kayne, Shana Siegel | Tags: , , ,

  • Aug 11, 2020Taking Charge: Advance Care Planning for Retirement

    Shana Siegel, a Member of law firm Norris McLaughlin, P.A., and Chair of its Elder Care & Special Needs Law Practice Group, will co-present the free webinar, “Taking Charge: Advance Care Planning for Retirement,” hosted by the New Jersey Health Care Quality Institute as part of their Conversation of Your Life (COYL) series.

    About Advance Care Planning for Retirement 

    Shana, along with Michele Smith, Hospice Liaison of Compassionate Care Hospice, and Heather Darling, Morris County Surrogate, will discuss setting realistic goals to effectively plan for retirement and how to follow through as early as possible. Discussion topics will include:

    • Advance Care Planning
    • Advance Directives
    • Elder Law
    • Estate Planning
    • Hospice
    • Palliative Care

    When: Tuesday, August 18, 2020

    noon – 1:00 p.m.

    Registration: njhcqi.org

    About Shana Siegel

    Shana Siegel concentrates her practice in the area of elder law, focusing on representing seniors, individuals with special needs, and their families in connection with life care planning, public benefits, trust and estate planning, and long-term care advocacy. As one of the few Certified Elder Law Attorneys (CELA) in northern New Jersey to be certified by the National Elder Law Foundation (NELF), Shana has extensive experience in probate and estate administration, asset preservation, supplemental and special needs trusts, planning for disability, guardianship and estate litigation, resident rights, health care decision-making, Medicare, Medicaid, and health insurance appeals.

    Shana has been involved in health and long-term care issues for over 25 years. She is a past president of the New Jersey Chapter of the National Academy of Elder Law Attorneys (NAELA), where she regularly met with legislators and government officials on behalf of the elder law bar and their clients. In 2015, Shana was invited to join NAELA’s prestigious Council of Advanced Practitioners (CAP). Additionally, Shana is a member of the New Jersey Women Lawyers Association, the New Jersey State Bar Elder & Disability Law Section, and the Life Care Planning Law Firms Association. She is active with the Long Term Living Association, several local chambers of commerce, and Jewish philanthropies.

    Posted in: Elder Care & Special Needs Law, Estate Planning & Administration, Events, Shana Siegel | Tags: , ,

  • Jul 21, 2020Jill Lebowitz to Speak on New Jersey Inheritance Tax at NJICLE Estate Planning Summer Institute

    Jill Lebowitz, a Member of the law firm Norris McLaughlin, P.A., will present “Digging Deeper into the New Jersey Inheritance Tax” for the New Jersey Institute of Continuing Education (NJICLE) Estate Planning Summer Institute.

    “Each year, it is my pleasure to participate in the NJICLE Estate Planning Institute. Especially now, during these unprecedented times, it is more important than ever to stay informed,” said Lebowitz.

    About the NJICLE Estate Planning Summer Institute

    The two-day program, co-sponsored by the New Jersey State Bar Association Real Property, Trust and Estate Law Section, will be held on Thursday, July 23, and Friday, July 24, 9:00 a.m. – 4:00 p.m., as a live webcast. The Institute offers 13.4 CLE credits, including one ethics/professionalism credit. For more information and to register, visit njsba.com or call NJICLE at 732-214-8500.

    About Jill Lebowitz

    Lebowitz devotes her practice to estate planning, trust and estate administration, and counseling tax-exempt organizations. She is experienced in drafting sophisticated estate planning instruments and counseling individuals and families regarding estate, gift, and generation-skipping transfer tax issues. Lebowitz advises clients on the development of both simple and complex estate plans, philanthropic planning, and business succession issues. She drafts estate planning instruments including wills, revocable living trusts, insurance trusts, dynasty trusts, charitable trusts, grantor retained annuity trusts, qualified personal residence trusts, shareholders agreements, limited liability company operating agreements, durable powers of attorney, and advance directives for health care.

    In addition, Lebowitz handles all aspects of trust and estate administration, as well as fiduciary litigation and guardianship matters. She prepares federal and state estate and inheritance tax returns and federal gift tax returns. Lebowitz is knowledgeable in drafting disclaimers and agreements regarding post-mortem planning, informal distribution agreements, judicial fiduciary accountings, and handling court proceedings to effect the final distribution of estates and trusts. She also counsels individuals and financial institutions regarding their fiduciary duties as personal representatives and trustees, including advising on legal and tax issues, as well as issues in connection with administering trusts. She also assists individuals, families, and fiduciaries with all aspects of fiduciary litigation and handles guardianship matters.

    Lebowitz regularly advises tax-exempt organizations regarding federal tax exemption issues, state charitable registration filings, and governance issues. On behalf of tax-exempt organizations, she drafts nonprofit corporation documents and prepares federal applications for tax-exempt status, state charitable registration filings, and state property tax and sales tax exemption applications. Lebowitz has extensive experience advising individuals, family and corporate foundations, and tax-exempt organizations on nonprofit corporate governance, private foundation excise taxes, domestic and international grant-making, executive compensation, excess benefit rules and intermediate sanctions, unrelated business income, scholarship programs, and fundraising issues.

    Lebowitz is a Fellow of The American College of Trust and Estate Counsel (ACTEC), a national organization of approximately 2,500 lawyers elected to membership by demonstrating the highest level of integrity, commitment to the profession, competence, and experience as trust and estate counselors. She has also been selected for inclusion on the list of New Jersey Super Lawyers in the Estate & Probate section.

    Lebowitz is a Past Chair of the New Jersey State Bar Association’s Real Property, Trust & Estate Law Section, and continues to serve on the Section’s Board of Consultors. She is also a Past President of the Greater Middlesex/Somerset Estate Planning Council and continues to serve on its Board of Trustees.

    Lebowitz earned her LL.M. in Taxation from New York University School of Law, her J.D. from Rutgers University School of Law—Newark, and her B.A. from New York University.

    Posted in: Estate Planning & Administration, Jill Lebowitz, News, Taxation | Tags: , ,

  • Jul 14, 2020Special Needs Spotlight Webinar Series: Guardianship and Supported Decision-Making

    The law firm Norris McLaughlin, P.A., is pleased to present the Special Needs Spotlight Webinar Series. In this session, “Guardianship and Supported Decision-Making,” A. Nichole Cipriani, a Member of the firm, will be joined by Elizabeth McKenna, CFP and Chartered Special Needs Consultant.

    Guardianship and Supported Decision-Making

    When: Wednesday, July 15, 2020

    noon – 1:00 p.m.

    Registration: Eventbrite

    About Your Presenters

    Nichole Cipriani, Esq.

    Nichole devotes her practice to estate and tax planning and estate administration. She assists individuals and families with a broad range of estate and tax planning, including business succession planning, special needs and disability planning, and international estate planning. To that end, Nichole is experienced in preparing wills, insurance trusts, revocable trusts, qualified domestic trusts, grantor-retained annuity trusts, charitable trusts, qualified personal residence trusts, special needs trusts, supplemental benefits trusts, durable powers of attorney, and advance directives for health care. Her planning practice also encompasses asset planning involving family limited partnerships and tax-exempt organizations, such as family foundations.

    In addition, Nichole counsels executors and trustees in administering decedents’ estates and trusts. Her estate administration practice includes probate proceedings, preparing estate and inheritance tax returns, handling estate and inheritance tax audits, and preparing documents necessary to effect interim and final distributions from an estate or trust. Nichole has extensive experience representing clients before the Internal Revenue Service, preparing filings for individuals and legal entities, including Forms 706, 709, 990, and 1041; drafting and filing Tax Court petitions and Private Letter Ruling requests; and negotiating Innocent Spouse relief.

    Elizabeth McKenna, ChSNC™, CFP®

    Elizabeth of Merrill Lynch Wealth Management has over 20 years of experience in the financial services industry and has been in practice as a financial advisor since 2000. In 2008, she earned her CERTIFIED FINANCIAL PLANNER™ certification. Elizabeth also holds the Chartered Special Needs Consultant® designation. As a Portfolio Manager, she can help clients pursue their objectives by managing on a discretionary basis my own Personalized or Defined Strategies, which may incorporate individual stocks and bonds, Merrill model portfolios, and third-party investment strategies.

    Through wealth management and education, Elizabeth strives to work with clients and their families to overcome life’s financial challenges and help them develop a financial design that will offer them an opportunity to sleep better at night. She takes a collaborative approach to develop a personalized plan that addresses the client’s unique financial goals. While she has the capability to address the needs of any investor, Elizabeth has a particular emphasis on serving the families and individuals with special needs and eldercare who have unique financial challenges. She also offers guidance on investment portfolios, liquidity issues, risk tolerance, concentrated stock and restricted stock management, retirement transition, and wealth transfer strategies.

    About the Special Needs Spotlight Webinar Series

    Throughout this series, Shana Siegel, a Member of the firm and Chair of its Elder Care & Special Needs Law Practice Group, and her guests will address legal, financial, care, and psychosocial issues, such as guardianship, public benefits, ABLE accounts, life care planning, supported decision-making, residential options, etc. To save the dates for future segments, please click here.

    Posted in: A. Nichole Cipriani, Elder Care & Special Needs Law, Estate Planning & Administration, Events | Tags: , ,

  • May 13, 2020Medicaid Planning

    Shana Siegel, a Member of law firm Norris McLaughlin, P.A., and Chair of its Elder Care & Special Needs Law Practice Group, will co-present the National Business Institute audio webinar, “Medicaid Planning.”

    About Medicaid Planning

    This webinar, designed for accountants, attorneys, financial planners, geriatric care managers, investment advisors, nursing home administrators, and paralegals, offers the most current and effective Medicaid planning best practices when dealing with increasing health and long-term care costs aging clients experience when seeking assisted care.

    Shana will present “Excluded vs. Countable Assets,” 9:30 – 10:45 a.m., regarding annuities, asset valuations, bank accounts, bonds, Community Spouse Resource Allowance, Earned Income Tax Credit, estate planning, government payment programs, household goods, income-producing property, insurance, loans, mutual fund shares, stocks, trusts, and vehicles. She will then present “Qualifying Asset Transfers: Which Techniques Work,” 12:30 – 1:45 p.m, which covers debt repayments and expense prepayments, exempt assets, gifts, IRAs and retirement accounts, life estate purchases, promissory notes and annuities, Reverse Half-Loaf Income Technique, reverse mortgages, spouse protection, and timing of transfers.

    Other discussion topics will include:

    • “Is Medicaid Right for Your Client?”
    • “Income Eligibility”
    • “Application Process, Appeals, and Post-Eligibility Issues”
    • “Liens, Estate Recovery, and Hardship Waivers”
    • “Legal Ethics”

    When: Wednesday, June 17, 2020

    9:00 a.m. – 4:30 p.m.

    Registration: nbi-sems.com

    The first registration costs $349 and each additional registration is $339. You may purchase the live audio webinar, on-demand audio, audio download, or audio CD.

    About Shana Siegel

    Shana Siegel concentrates her practice in the area of elder law, focusing on representing seniors, individuals with special needs, and their families in connection with life care planning, public benefits, trust and estate planning, and long-term care advocacy. As one of the few Certified Elder Law Attorneys (CELA) in northern New Jersey to be certified by the National Elder Law Foundation (NELF), she has extensive experience in probate and estate administration, asset preservation, supplemental and special needs trusts, planning for disability, guardianship and estate litigation, resident rights, health care decision making, Medicare, Medicaid, and health insurance appeals.

    Shana has been involved in health and long-term care issues for over 25 years. She is a past president of the New Jersey Chapter of the National Academy of Elder Law Attorneys (NAELA), where she regularly met with legislators and government officials on behalf of the elder law bar and their clients. In 2015, Shana was invited to join NAELA’s prestigious Council of Advanced Practitioners (CAP). Additionally, Shana is a member of the New Jersey Women Lawyers Association, the New Jersey State Bar Elder & Disability Law Section, and the Life Care Planning Law Firms Association.

    Posted in: Elder Care & Special Needs Law, Estate Planning & Administration, Events, Shana Siegel | Tags: , ,

  • Mar 26, 2020Tension Between Site Remediation and Expeditious Estate Administration

    When considering environmental liabilities in the context of an estate administration, property owners can take proactive steps to abate the risk, or at least make it more manageable for their heirs.

    Claims Against Estates 

    Environmental liabilities generally do not lend themselves to the typical resolution procedure applicable to non-environmental liabilities in estate administrations. Generally, a creditor of a decedent has nine months from the date of the decedent’s death to present a claim in writing to the executor or administrator of the decedent’s estate (collectively “Personal Representative”; N.J.S.A. 3B:22-4). If a creditor fails to present a claim within the nine-month period, the Personal Representative is not personally liable to the creditor with respect to any assets that the Personal Representative may have delivered or paid in satisfaction of any lawful claims, devises, or distributive shares. Id. After the expiration of the nine-month period and distribution of estate assets, creditors can still pursue their claims against estate beneficiaries under their Refunding Bonds (N.J.S.A. 3B:22-16).

    However, Personal Representatives of estates whose decedent held potentially contaminated real property, in his or her individual name or in a general partnership, face unique and difficult challenges in attempting to satisfy obligations under environmental law within the statutory framework discussed above. There are two distinct reasons for this difficulty: (a) environmental liabilities of estates often have not been quantified, an often-lengthy process; and (b) long-tail obligations may attach when an environmental remediation leaves contamination on-site and engineering and institutional controls are utilized.

    The enactment of the Site Remediation Reform Act (SRRA) in 2009 should have largely eliminated the first problem, since all properties with historical (pre-SRRA) contamination should already have been reported and investigated. Unlike the Industrial Site Recovery Act (ISRA) (which mandated remediation of only a subset of properties—generally properties with operating manufacturing, and certain warehousing and service businesses—and only upon their sale or closure), the SRRA required reporting of all properties with known contamination and set forth a strict schedule for completion of investigation (five years from the 2012 effective date, i.e., 2017) and remediation (10 years, i.e., 2022). Thus, by now, all contaminated properties existing in 2009 should have been identified, the investigation completed, and the remediation well underway.

    The reality, however, is different. Without a pressing transaction and the attendant infusion of funds, many owners of historically contaminated properties, especially those with no current productive use, simply have not complied with the SRRA’s mandates. Unlike ISRA matters, without a purchaser pushing for compliance and without an infusion of new funds, many owners felt neither the pressure to report nor the ability to fund an investigation and remediation; thus, their property remains unaddressed.

    However, upon the death of the property owner, the Personal Representative of the property owner’s estate now has the compliance obligation and should not risk sanctions for non-compliance. Naturally, the Personal Representative will face challenges in selling real property that needs to be liquidated for the payment of debts, expenses, and taxes, and for ultimate distribution to the beneficiaries. Where property is specifically bequeathed, the beneficiary is faced with the decision of whether to disclaim the property (a decision that must be made, pursuant to Internal Revenue Code Section 2518, within nine months of death to avoid U.S. Gift Tax consequences), or perhaps assert claims against the remainder of the estate for additional funds to investigate and remediate the contaminated property.

    Timing Challenges

    Personal Representatives face the timing challenges posed by the fact that the Preliminary Assessment, Site Investigation and Remedial Investigation (“PA,” “SI” and “RI,”) process can take several years. With the SRRA’s creation of the Licensed Site Remediation Professional (LSRP), the delay of seeking NJDEP approval at each step of the remedial process has been reduced. Nevertheless, inherent delays are associated with the process of preparing the PA, SI and RI. In addition, the finality of the “end” of the remedial process, the issuance of a Remedial Action Outcome (RAO), is subject to a three-year period during which NJDEP can audit and overturn the RAO.

    The other timing issue is that the obligations of the Responsible Party (RP) may never end. If contaminated soils are left in place under an impermeable cap (typically pavement, building slab, engineered greenscape, etc.), subject to a deed notice (often the only rational and cost-effective remedy), it is accompanied by a Soils Remedial Action Permit (Soils RAP). The RP is perpetually the permittee, although the then-current owner is a co-permittee. The Soils RAP requires inspection and maintenance of the cap, annual inspection, biennial report, annual fee, and perpetual establishment and maintenance of “hard” Financial Assurance (FA) in the form of a letter of credit, line of credit, or fully-funded trust in the amount of the net present value of performing the permit conditions.

    Matters involving groundwater contamination may require groundwater treatment, but even then, the very stringent State Groundwater Quality Standards (GWQS) are often not achieved.   In those fairly typical situations, the only remaining remedy is Natural Monitored Attenuation.  That means natural dilution and degradation processes are modeled, and a projection of the size and duration of the contaminated plume is calculated. The RP is obligated to periodically (typically annually, sometimes for 20 years or more) sample the groundwater plume for the calculated duration to ascertain that the GWQS have been achieved. If they have not, then the RP may have to extend the period of monitoring, or in some circumstances, implement additional remedial measures. These obligations are incorporated into a Groundwater RAP. As with a Soils RAP, the original RP is perpetually a permittee, with the current property owner a co-permittee. Unlike a Soils RAP, no FA is required.

    Dealing with Environmental Liabilities in Estate Administration

    Statutory liability for environmental liabilities is generally fixed, but the amount and timing of the payment obligation are uncertain, particularly where the investigative and remedial process is ongoing. In that circumstance, the Personal Representative would be ill-advised to distribute estate assets, even upon receipt of refunding bonds from all beneficiaries, without establishing an adequate reserve for environmental liabilities (See, N.J.S.A. 3B:22-11). But in the context of environmental liabilities, what amount will be adequate?

    Naturally the most conservative approach would be for the Personal Representative to keep the estate open and retain all assets available to satisfy the estate’s remedial obligations until completion. However, as indicated above, resolution may not come for many years after the decedent’s death, leading the Personal Representatives to seek alternatives to expedite distribution of estate assets to beneficiaries to the extent possible without exposing themselves to personal liability.

    One approach could be for the Personal Representative to seek an LSRP’s guidance to calculate an adequate reserve for environmental obligations and incorporate that reserve into an application for approval of a formal judicial accounting and discharge, putting the DEP on notice as an interested party. While liability may still exist for the beneficiaries under their refunding bonds, a discharge orchestrated in this manner should serve to exonerate the Personal Representative from personal liability for making distributions in excess of the reserve (See, N.J.S.A. 3B:17-8).

    The Personal Representative may also want to seek advice and direction from the court in certain situations before expending estate assets on environmental investigation, remediation and clean-up costs. For example, residuary beneficiaries and specific devisees of contaminated real property are likely to differ on the extent to which estate funds should be expended on environmental remediation costs, particularly where the liquid assets of the estate are not significant in relation to the potential exposure. An action for advice and direction gives all parties the opportunity to be heard and can protect the Personal Representative from potential breach of fiduciary duty claims.

    In sum, when considering environmental liabilities in the context of an estate administration, the adage “the best defense is a good offense” is apt. A review of the case law and statutes regarding environmental liability reveals that transparency is key. Property owners who know their property may be susceptible to environmental liability claims should be upfront with their executors, trustees, beneficiaries, and heirs to make them aware of potential issues facing properties that these people will come to own and/or manage. Transparency will also empower fiduciaries and/or beneficiaries to preserve the defenses available to them under state and federal environmental liability laws. For example, under both the Comprehensive Environmental Response Compensation and Liability Act of 1980 (CERCLA) (federal law) and the New Jersey Spill Compensation and Control Act (NJ Spill Act) (state law), the “innocent purchaser” defense is available to subsequent titleholders of contaminated property who are able to prove that they made reasonable and appropriate inquiry into the condition of the property, the past owners of the property, and previous uses of the property; and to those who have not contributed to the contamination. Without knowledge of a potential contamination problem, or the threat thereof, subsequent titleholders are not likely to engage in a high level of due diligence prior to taking title to a property.

    In addition to preserving defenses available to a subsequent titleholder, being transparent in acknowledging and investigating the source of the problem may also highlight any right to contribution from previous owners or dischargers that the property owner may have. Such defenses may be preserved and carried forward by the Personal Representative or heirs upon the property owner’s death.

    Finally, although there is no way to totally remove the specter of environmental liability issues cast upon fiduciaries, beneficiaries, and heirs, a property owner facing these challenges can take proactive steps to abate the risk or make it more manageable for those they leave behind.

    Edward A. Hogan is co-chair of the Environmental Law Group at Norris McLaughlin in Bridgewater. James J. Costello Jr. is co-chair of the firm’s Trust, Estate, and Individual Tax Group. The authors are grateful for the assistance of their colleagues, Nicholas J. Dimakos and Shauna M. Deans, who are associates at the firm.

    Reprinted with permission from the March 25, 2020, issue of the New Jersey Law Journal. © 2020 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.

    Posted in: Edward A. Hogan, Environmental, Estate Planning & Administration, James J. Costello, Nicholas J. Dimakos, Shauna M. Deans |

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