Changes To New Jersey Child Support Laws

The term “child support” gives the general implication that the support is intended for adolescents up until they reach the age of emancipation. However, up until recent years, this was not the case in New Jersey. Prior to recent legislation, many parents would continue to provide child support long after the child reached the age of 18, or would terminate the payments themselves without obtaining a court order. The New Jersey legislature recognized the issue and in 2016 passed a legislation that allows for the termination of child support when the child turns 19 years old. On February 1, 2017, the law went into effect in New Jersey. The law not only applies to future child support orders but existing orders as well.

Under the law, the age of child support emancipation in New Jersey change from 18 to 19 years old. Child support may be extended beyond the age of 19 years old, up to the age of 23, if a child has not yet completed high school, is currently enrolled full-time in a higher education institution, or has a permanent disability. However, individuals may also establish a custody agreement that sets forth its own terms and conditions regarding child support cut off dates.

Prior to the legislation, New Jersey allowed for child support to continue until the child entered marriage, entered the armed forces, graduated from high school without pursuing a post-secondary education, or completion of a post-secondary school. In any of these circumstances, if the parent wished to terminate their child support requirements they would need to get consent from the custodial parent or file an application with the court.

The New Jersey Probation Division will send notifications to families of children nearing the age of 23 that state that child support payments will cease as of a specific date. Similar to this, if a family was collecting child support for an individual who is either over the age of 19 years old, but younger than 22 years old, they will received a letter indicating whether they wish to request a modification or extension of support. For those who have a child that will turn 19 years old after August 1, 2017, they should have received a notice of child support termination six months prior to the child turning 19 years old.

Each notification requires the receiver to acknowledge receipt and provides a copy to the proper court of law. If acknowledgment is not received, the court will issue another letter. Regardless if the court received acknowledgment from the receiver, the court will terminate support on the child’s 19th birthday and both parents will receive a letter confirming termination.

Those that have received a notice of termination for child support payments reserve the right to file a motion for a continuation. The individual must provide an alternative end date as well as:

  • Documentation showing a child is still in high school
  • Documentation that a child is a full-time student in a higher education institution
  • Medical records proving that a child has a mental disability or physical impairment, and that such disability existed prior to being 19 years old

If you would like information regarding the updated New Jersey child support laws, contact an experienced family law attorney. The attorneys at the Law Offices of Hunziker, Jones, & Sweeney, P.A. have experience assisting New Jersey residents with all aspects of family law, including child support and custody matters. We handle each legal matter with diligence and compassion. For more information or to schedule a consultation, call our New Jersey family law firm at (973) 256-0456.

Adding A Prenuptial or Postnuptial Agreement To An Estate Plan

Many people who are looking to tie the knot believe that mentioning a prenuptial agreement eliminates the romance. However, like any business relationship, a prenuptial or even a postnuptial agreement provide a range of benefits and security to both parties involved in the marriage.

Prenuptial agreement is a contract that is entered into between two parties prior to marriage. A postnuptial agreement is entered into after a legal marriage has already begun. Both prenuptial and postnuptial agreements allow the parties to plan for a variety of issues in the event of death or divorce of one spouse. Some individuals believe that a prenuptial agreement is unnecessary if both parties have comparable paying jobs, assets, and no prospect of inheritance. However, it is always beneficial to prepare early on for any incidents that may arise between spouses regardless of financial worth. The National Center for Health Statistics (NCHS) conducted a study that showed a third of marriages will result in divorce within ten years, which is why prenuptial agreements are especially important in the following situations:

  • A significant inheritance
  • Obtaining higher education pre or post marriage
  • One spouse owns a business or both spouses share a business
  • When one spouse financially supports a loved one such as a parent or child
  • Having assets prior to marriage
  • Having children prior to a current marriage
  • Disparity in net worth or wealth

A prenuptial agreement provides a detailed framework and financial arrangements in the event that death or divorce may occur. The agreement addresses the division of property, debt, maintenance, and other financial arrangements. Both prenuptial and postnuptial agreements help mitigate conflict between parties because they are negotiated during amicable times. Additionally, it decreases costs that may be incurred if a divorce should arise. Both parties are provided the opportunity to negotiate a fair arrangement and be given the comfort of having a safety net in case of conflict or death.

Prenuptial agreement or postnuptial agreement can prevent unnecessary conflict and preserve the resources of the marital estate from being depleted by litigation costs incurred because of divorce or death of a spouse. A prenuptial agreement also can provide property and spousal maintenance arrangements that are acceptable enough to both parties that they could be agreed to before marriage.

When executing a prenuptial or postnuptial agreement, it is important that individuals also consult an experienced estate planning lawyer who can oversee the process and will help to ensure that it is drafted in accordance with New Jersey State law. The lawyers at Hunziker, Jones, & Sweeney P.A. have experience representing clients in various matters, including estate planning and family law. The firm’s attorneys are trusted by their clients to handle each legal matter with diligence and compassion. For more information or to schedule a consultation, contact our New Jersey estate planning law firm at (973) 256-0456.

New Jersey Medicaid Penalty Divisor Increased For Gifts

As of April 1, 2017, the New Jersey Medicaid Program increased the penalty divisor for applicants who make monetary gifts. The divisor was based on a survey conducted to determine the average cost of nursing home care within the State of New Jersey.

In order for an applicant to eligible for long term care Medicaid in an assisted living facility or nursing home, there is a five-year look back period. This means that all financial records as well as any gifts made during the previous five years must be disclosed to Medicaid. In accordance with New Jersey law, if an individual or spouse made any monetary gifts over the course of the five years prior, then Medicaid would impose a gift penalty.

A penalty period is a time frame in which an individual will not be entitled to receive Medicaid and will have to pay for their own cost of care in a nursing home facility or assisted living facility. For instance, if Medicaid imposes a three-month penalty period because you made gifts within the last five years, then you would be responsible for paying for the cost of care for those three months.

According to New Jersey State Law, the duration of a penalty period is based on the amount that an individual has made in gifts, and is determined using the penalty divisor. As of April 1, 2017, the New Jersey Medicaid Program increased the penalty divisor from $332.50 per day to $423.95 per day. This means that if an individual made $20,000 in gifts, her or she would incur a 48-day penalty.

Due to the increased penalty divisor, individuals will be penalized less for past gifts that were made. An experienced Medicaid planning lawyer can help you plan ahead for Medicaid and advise you how best to protect and distribute your assets. The attorneys at Hunziker, Jones, and Sweeney P.A. can explain the intricate Medicaid eligibility rules to you, help you decide if the program is right for you, and assist you with formulating a plan to divest yourself of assets. For more information or to schedule a consultation, call our New Jersey Medicaid planning law firm at (973) 256-0456 or fill out our contact form.

Estate Plans Should Account for Digital Assets

Whether it’s through social media, online bank accounts, PayPal or email, today many people are storing their personal information and finances online. When an individual passes away, his or her online accounts will continue to remain active. For this reason, it is important to account for digital assets in an estate plan. By defining what assets an individual owns and how to access them, a person will ensure that their loved ones can access online accounts that may have sentimental, financial, or practical value. Additionally, making these accounts available to beneficiaries after death can prevent them from falling into the wrong hands, resulting in fraud or hacking.

What are digital assets?

In an estate plan, it is important that individuals define what digital assets they have. Digital assets may include, but are not limited to, the following:

  • Social media – Facebook, Instagram, Twitter, LinkedIn, Pinterest, etc.
  • Financial accounts – PayPal, bank accounts, eBay, Amazon, online bill pay
  • Business accounts – consumer information, home and shipping addresses, credit card information, personal information, credit card statements, documents
  • Blogs or domain names
  • Loyalty program benefits – miles, points, cash back
  • Online games

What will be done with each digital asset?

When drafting an estate plan, it is important that individuals state how to access each digital asset and how the asset is to be handled after he or she passes away. An individual may choose to have some accounts archived, while others they may want deleted entirely or transferred to family members, friends or business colleagues.

For digital assets that have financial value, an individual may consider whether or not they want to appoint someone to continue to manage the account, immediately close the account, or shut it down after the assets of the account have been distributed or sold. For example, if someone owns an eBay account through which they sell collectables, he or she may choose to transfer management of the account to another person, choose to have someone shut the account down after the collectables are all sold, or shut it down immediately. For miles, cash back and points, an individual may ask that those loyalty program benefits be redeemed. If a digital asset has the ability to continue to generate revenue after the owner passes away, he or she may want to consider where that money will go and who will have access to it.

Why is estate planning for digital assets important?

Estate planning for digital assets is important for a number of reasons, including making things easier on loved ones, preventing identity theft and fraud, and preventing unnecessary losses of the estate’s finances. Firstly, estate planning for digital assets may ease the burden off family members and loved ones who may need to access the accounts. Since many people set up a different login and password for each digital asset, identifying and accessing the accounts may be time-consuming and stressful. Loved ones will benefit from having this information provided to them as well as guidelines for how the accounts should be handled according to the deceased’s wishes.

Additionally, access to online accounts may be crucial in preventing the deceased’s identity from being stolen. Criminals may be able to open credit cards, get identification cards, and apply for jobs under the deceased’s names in the time before the authorities update their database with their death. Finally, access to the accounts may help keep track of the estate’s assets and ensure that unnecessary financial losses do not occur. Beneficiaries need to identify and access online bills, loans, insurance, and other expenses quickly or the accounts may accrue late fees or be canceled all together. This is especially important if the deceased ran a business as he or she may be the only person with access to servers, corporate bank accounts, employee payroll accounts, or incoming orders.

When creating an estate plan, it is important that individuals consult an experienced attorney who can oversee the process and help ensure that it reflects the wishes of the testator. The New Jersey estate planning lawyers at Hunziker, Jones, & Sweeney P.A. have experience representing clients in various matters, including the drafting, execution, probate, and contest of a Last Will and Testament. Our estate planning lawyers recognize that these issues can range from simple to complex, and come at an emotional time for family members and loved ones. The attorneys at the firm are trusted by their clients to handle each legal matter with diligence and compassion. For more information or to schedule a consultation, contact our New Jersey estate planning law firm at (973) 256-0456.

Guardianship of Disabled Adults in New Jersey

At 18 years old, all people in New Jersey, including those with disabilities, are considered adults under the law. Regardless of the individual’s type of disability or if he or she lives at home, once an individual reaches the age of 18, parents can no longer make decisions legally on their behalf. Some families may want to consider establishing a legal guardian for a disabled individual, once they reach the age of majority, who will represent his or her best interests.

Guardians may make decisions in some areas of the individual’s life, such as residential, educational, medical, legal, vocational, and financial matters. There are two types of guardianships: general and limited. General guardianship, also known as plenary guardianship, is appropriate for individuals who cannot make or express any decisions. Limited guardianship is appropriate for individuals who are able to make and express some, but not all, decisions. A limited guardianship may be appropriate for high-functioning disabled individuals or those with mild cognitive impairment.

There are two ways to obtain a guardianship for a disabled individual over the age of 18 who is receiving services from the Division of Developmental Disabilities (DDD). First, a family member or interested party can file a guardianship action with two physicians or one physician and one psychologist who can attest to the individual’s incapacity. Another way is to file a Title 30 (DDD) guardianship.

To file for a DDD guardianship, only one physician or psychologist will need to examine the individual and write an evaluation that will be submitted under oath. A second report will typically be submitted by the regional DDD administrator. Based on the knowledge of the agency and the individual’s level of mental capacity, the director can certify whether or not the individual should be appointed a guardian. After the physician or psychologist’s affidavit and the director’s certification are filed with the court, the court will appoint a private attorney to represent the DDD recipient. Title 30 judgments instill the same power as a regular guardianship. However, guardians must follow certain reporting and record-keeping requirements, which must be fulfilled with the court annually.

In addition to filing for guardianship, parents of a disabled individual may be able to appoint a successor guardian in their Last Will and Testament. It is important that, when parents consider appointing a primary successor, they also designate a second and third successor, in case the primary successor is unable to perform his or her duties. If there is no one to serve as a successor guardian, the state may be able to serve as guardian, as a last resort. A special needs trust can be established to serve the needs of the disabled individual.

As an alternative to a guardianship, some disabled individuals have the option of establishing a power of attorney. A power of attorney can make decisions on behalf of an individual regarding their property and assets. A disabled individual must be able to comprehend, at least on a basic level, that they are appointing another person to make decisions on their behalf. He or she must also be able to consent to the power of attorney.

If you are the parent of a loved one with a disability and are considering the establishment of a guardianship or a power of attorney, it is important to consult an experienced attorney. The New Jersey guardianship attorneys at Hunziker Jones & Sweeney P.A. are experienced with assisting families and individuals with guardianship matters. For more information or to schedule a consultation, contact our New Jersey guardianship law office at (973) 256-0456.

Grounds to Contest a Will

When someone contests a Last Will and Testament, they are objecting to its validity. In order to contest a Will in New Jersey, an individual must have “standing,” or locus standi. To have standing, or locus standi, the individual must be considered a person with an interest in the estate, such as legal heir. Anyone named in a prior Last Will and Testament may also have standing to contest a Will, if the Will entered into probate removes or reduces the share that person or group would have received in a prior Will.

Individuals may contest a Last Will and Testament for a variety of reasons, including improper execution, lack of testamentary capacity, undue influence, or fraud. Here are the four grounds that are used to contest a Will:

A Will must be signed in accordance with New Jersey Law.

  • A Will must be properly executed under New Jersey Law. If a Last Will and Testament does not meet the standards of execution, then it is deemed to be invalid and, therefore, cannot transfer property or assets to the heirs of the deceased. The signature section of a Will is very important, which is why an experienced estate planning attorney should oversee the execution the Will. Additionally, it is imperative that the proper number of witnesses are present at the Will’s signing.

An individual must have testamentary capacity.

  • If the individual did not have testamentary capacity at the time his or her Will was executed, it is invalid. Most states recognize that, in order to be considered competent to execute a Last Will and Testament, an individual must know (1) the nature and value of their assets, (2) the recipient of their assets if they did not have a Will, and (3) the legal effect of signing the Will.

A person must not be unduly influenced.

  • Undue influence is one of the most common grounds for the contest of a Last Will and Testament. In order to prove that undue influence occurred during the execution or modification to the Will, a person must show that the Will left assets in a way that was not expected, a “confidential relationship” existed between the testator (creator of the Will) and the individual who exerted influence, the testator was susceptible to undue influence, and the influencer took advantage of the Will and benefited from it. Essentially, the testator may have been under duress and lost their independence to think for themselves. Oftentimes, it is hard to prove undue influence as it must be proven based on factual evidence. However, when unequal distributions are made or distributions to non-family members, courts have considered that a Will was created out of duress and, in this case, they may closely examine the execution of the Will if it is contested by a third-party.

A Will must not be fraudulent.

  • Fraud can occur when a person adds pages into a Will unbeknown to the signer, or a testator believes they are signing one type of document when in fact it is a Last Will and Testament. In this instance, the Will is invalid because it is not an expression of the testator’s true intent. It is important that individuals review and consent to all parts of the document and sign each page.

When executing a Last Will and Testament, it is important that individuals consult an experienced estate planning lawyer who can oversee the process and help ensure that it is drafted in accordance with New Jersey State law and reflects the wishes of the testator. The lawyers at Hunziker, Jones, & Sweeney P.A. have experience representing clients in various estate planning matters, including the drafting, execution, probate, and contest of Last Will and Testaments. Our estate planning lawyers recognize that these issues can range from simple to complex, and come at an emotional time for family members and loved ones. The attorneys at the firm are trusted by their clients to handle each legal matter with diligence and compassion. For more information or to schedule a consultation, contact our New Jersey estate planning law firm at (973) 256-0456.

Important Documents to Have in Place Specifically for End-of-Life Decisions

Every individual should have documents such as a Health Care Proxy, Living Will, Do Not Resuscitate (DNR) and/or Do Not Intubate (DNI), and Practitioner Orders for Life-Sustaining Treatment (POLST) in place to assist loved ones who may need to make medical decisions on their behalf, including end-of-life decisions. A brief overview of the purpose of each document can be found below.

Health Care Proxy

A health care proxy is a document that allows an individual, the agent, to make medical decisions on another individual’s behalf if a doctor concludes that he or she is unable to make these decisions for themselves. An agent can only make decisions about artificial hydration and feeding (nourishment and water provided by a feeding tube or intravenous line) if he or she knows the patient’s wishes from what they said or have written. For this reason, is imperative that the document indicates whether or not the agent is permitted to allow or refuse hydration or feeding. A health care proxy should list at least one successor agent in case the initial agent is unavailable, unable, or unwilling to make such decisions.

Living Will

A living will is a legal document that provides evidence of an individual’s wishes for medical treatment or life support. A living will is usually signed along with a health care proxy. This document can outline an individual’s acceptance or refusal of treatments, such as artificial nutrition and hydration, antibiotics, cardiac resuscitation, mechanical respiration, blood transfusions, or surgery, among others. Although someone other than a lawyer can prepare a health care proxy and living will, it is not recommended. An experienced estate planning lawyer will include more extensive language in these documents.

Do Not Resuscitate (DNR)

A Do Not Resuscitate (DNR) form is orders signed in a hospital or other facility that apply only to cardiac respiratory arrest. It directs the facility that no chest compression, defibrillation, ventilation, or intubation be administered. An individual or acting agent can consent to a DNR. Additionally, it is issued by a physician and on a Department of Health form.

Practitioner Orders for Life-Sustaining Treatment (POLST)

The Practitioner Orders for Life-Sustaining Treatment (POLST) form allows a patient to indicate their wishes regarding life-sustaining treatment. The form, executed by a patient’s physician or advanced practice nurse, provides guidance for health care professionals to follow for a range of life-sustaining treatments. The POLST form follows an individual from one health care setting to another, including hospitals, nursing homes and hospice. For instance, if someone is transferred from a nursing home to a hospital, the form will follow them to ensure that his or her wishes are properly conveyed.

It is important that wishes for medical treatment, or withholding of treatment be discussed with family and agents. Additionally, after these documents are executed, it is important to continue to have conversations with loved ones regarding your wishes as they may change.

The New Jersey estate planning attorneys at Hunziker, Jones and Sweeney, P.A. can provide assistance in putting your legal, financial, and medical affairs in order to avoid legal complications requiring court intervention. For more information or to schedule a consultation, call our New Jersey estate planning law firm at (973) 256-0456 or fill out our contact form.

What to Do When the Surrogate’s Court Asks for an Inventory of Assets

An inventory of assets is a form that may be required by the Surrogate’s Court. The form must be completed and delivered to the court by either the fiduciary of the estate or, at the request of the fiduciary, it may be provided by the attorney on record.

The inventory of assets form provides the Surrogate’s Court with the following information:

  • Total value of assets of the estate owned by the decedent individually, or assets the decedent had a partial interest in
  • Total value of assets payable or transferrable to decedent’s estate

This may be required in order to determine the amount of a surety bond. Normally, this is set based on the value of the date of death assets. Sometimes the person applying as the personal representative does not have this information readily available. If this is the case, as assets are discovered after the fact, the Surrogate Court must be notified and the bond increased.

The other reason for advising the Surrogate Court about the value of the assets is to notify the State of New Jersey of a potential tax due from the estate. In New Jersey, in 2017, if the estate is larger than 2 million dollars, a New Jersey Estate Tax return is due within 9 months of date of death. The New Jersey Estate Tax Return requires similar information about assets and liabilities as would be required under the Federal Estate Tax Return. In 2018, there will be no New Jersey Estate tax imposed.

Probating a will is often very complex and happens at an emotional time. It is important to speak with a knowledgeable New Jersey estate planning attorney to help achieve your goals and protect your loved one’s assets. The estate planning attorneys of the Law Offices of Hunziker, Jones, & Sweeney, P.A. have experience assisting New Jersey residents with all aspects of trusts and estates, including wills, estate administration and estate taxation. Our estate planning lawyers are trusted by our clients to handle each legal matter with diligence and compassion. For more information or to schedule a consultation, call our New Jersey estate planning firm at (973) 256-0456.

Probating a Will

It is important to create a comprehensive estate plan, and there are certain measures that one can take to avoid probate if done correctly. Probate is the legal process whereby a last will and testament is determined to be valid and authentic by a court of law. Under New Jersey State Law, the will is admitted to probate when the executor files a “Petition for Probate” with the decedent’s will attached. Additionally, if the decedent died without a will, then an administrator would apply with the Surrogate. Probate proceedings take place in the county surrogate’s court where the decedent resided at the time of their death.

At the probate proceeding, the Surrogate can deny the probate of the will if there is doubt on its face. If there are no objections, the Surrogate then issues letters of testamentary to the executor of the will. An executor of an estate has a fiduciary duty to the estate’s beneficiaries. This means that the executor is obligated to carry out the will in accordance with its terms and must act with good faith and honesty. Therefore, the executor carries out the decedent’s wishes in accordance with the decedent’s last will and testament. This includes paying all of the administrative expenses, funeral bills, and debts, as well as settling claims. The remaining funds are then paid out to the named beneficiaries. The executor must also manage and address any issues that may arise throughout the estate’s administration.

A way to avoid probate is to create a trust to hold assets during an individual’s lifetime and then ensure those assets are distributed upon death. The passing of the assets would occur in the same way as an executor would distribute the assets when probating a will. However, probating a will means that the document is a public record that anyone can view. A trust document is a private document and its terms are not public. One of the best methods to avoid the risks associated with probate is to create a revocable trust and transfer the non-retirement assets during the course of a person’s lifetime into the trust. Retirement assets such as IRAs and 403Bs are governed by their own rules and should therefore not be transferred to a revocable trust because a person could face adverse income tax consequences. Retirement funds should pass by virtue of beneficiary designation after death. This means that retirement assets are not subject to probate so long as it designates a beneficiary.

Sometimes avoiding probate may not be an option, as one size does not fit all when it comes to estate planning. By taking all factors into consideration, an individual can create a successful estate plan that fits their needs. It is important to speak with a knowledgeable New Jersey estate planning attorney to help achieve your goals and protect your assets. The estate planning attorneys of the Law Offices of Hunziker, Jones, & Sweeney, P.A. have experience assisting New Jersey residents with all aspects of trusts and estates, including wills, estate administration and estate taxation. Our estate planning lawyers are trusted by our clients to handle each legal matter with diligence and compassion. For more information or to schedule a consultation, call our New Jersey estate planning firm at (973) 256-0456.

New Jersey Credit Shelter Trust and Estate Taxes

Over the last few years, both New Jersey and federal estate tax laws have changed. Currently, a decedent’s estate only needs to pay federal estate tax if the gross value of the estate exceeds $5,490,000. In New Jersey, estates with a value in excess of $2,000,000 have to pay the state’s estate tax. As of January 1, 2018, the New Jersey estate tax will no longer be in effect.

Married couples in New Jersey may be able to avoid estate tax if they employ a credit shelter trust. A credit shelter trust allows each spouse to draft a will to devise a portion of their estate into a trust for the surviving spouse. The amount must be equal to the amount that is able to pass free of tax. This allows the living spouse to be able to use the money in the trust for health or maintenance expenses. The surviving spouse can serve as the trustee so that they can use the assets in the trust whenever, and however, they want.

In order to shelter assets, a surviving spouse must also have prepared and filed a federal estate tax return for the decedent’s estate and made an election on the return. In New Jersey, a couple can shelter up to $4,000,000 in a credit shelter trust. Credit shelter trusts double the amount of assets that are able to pass from one spouse to the next without an estate tax. However, since the estate tax will be eliminated in New Jersey as of January 1, 2018, married couples will no longer have to use a credit shelter trust to avoid New Jersey estate tax.

In terms of Federal Estate Tax, which will remain in effect, a married couple can still utilize a credit shelter trust. A married couple can shelter nearly double the gross value of the current guideline, which is $5,490,000. In terms of New Jersey estate tax, couples will no longer need to prepare for a credit shelter trust since the state tax will no longer exist. This will help alleviate some estate planning issues.

A spouse is still able to have a trust created for the surviving spouse upon their death, or they may give their spouse the option to a fund a trust upon their death through a disclaimer trust. A disclaimer trust is only funded if the surviving spouse does not want a portion of the decedent’s trust. This type of trust does not have to be funded after the death of the first spouse. However, this depends on the size of the estate at the time of the first spouse’s death.

If you currently have a credit shelter trust as part of your will, it is important to have your will examined, given the change in the law governing the New Jersey estate tax. It is important to consult a knowledgeable professional to assist you with your needs. The attorneys at the Law Offices of Hunziker, Jones, & Sweeney, P.A. have experience assisting New Jersey residents with all aspects of trusts and estates, including wills, estate administration and estate taxation. Our estate planning lawyers are trusted by our clients to handle each legal matter with diligence and compassion. For more information or to schedule a consultation, call our New Jersey estate planning firm at (973) 256-0456.

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