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Dublin Packard Attorneys at Law, 163 Madison Avenue , Suite 220, Morristown, NJ (2026)

11/22/2022

10 Things to Know About Writing a Will in New Jersey.

Below are 10 things you should know about writing a will. Did you know that according to an AARP survey, 2 out of 5 people in New Jersey over the age of 45 don’t have a will?

What is a Will?
A will is simply a legal document in which you, the testator, declare who will manage your estate and who will get your “stuff” when you die.

What Happens If I Don’t Have a Will?
Putting your wishes on paper helps your heirs avoid unnecessary hassles, and you gain the peace of mind knowing that a life’s worth of possessions will end up in the right hands.

If you die without a valid will, you’ll become what’s called “intestate.” That usually means your estate will be settled based on the laws of New Jersey that outline who inherits what (The Probate Statute) not according to your wishes.

What is Probate?
Probate is the legal process of transferring the property of a deceased person to the rightful heirs. If you have a will, the process follows your wishes as spelled-out in your will. If you don’t have a will, the process follows the probate statute.

Are Insurance Policies and Retirement Accounts Covered by Wills?
Someone designated to receive any of your property is called a “beneficiary.” You normally assign a beneficiary on life insurance policies and retirement accounts. Those assets go straight to the beneficiary no matter what the will says.

Where Should I keep My Will?
In New Jersey the probate court requires your original will before it can process your estate, so it’s important to keep the document safe yet accessible. Don’t put your will in a bank safe deposit box that only you can get into. A waterproof and fireproof safe in your house is the best place to keep your will.

Do I Need a Lawyer to Make a Will in New Jersey?
You can write a perfectly legal will on your own, without a lawyer, in every state including New Jersey. But should you?

You must draft a will that’s legal in your state and ensure it can stand up to scrutiny.

Do I Need My Will Notarized?
Yes. To be admitted into probate in New Jersey, your will must be notarized and it musts also be signed by two witnesses.

How To Choose Your Executor
The Executor of your Will is the person you name who will be responsible for settling your estate upon your passing. Choose someone trustworthy and capable of handling the financial, legal and moral obligations required to complete the process. Note that you can also name a Co-Executor, and many people choose to name an alternate in case their original is unable or unwilling to take on the task.

Who Can Be A Beneficiary Under My Will?
The beneficiaries you name are those who will benefit from your estate. They are sometimes also called “heirs” to your estate. They will inherit money, property, valuables and other belongings according to your wishes as outlined in your Will.

Minor Children and Naming a Guardian
If you have a minor child, one of the most important reasons to make a Will is to name someone you trust to raise, take care of and be responsible for your child.

A Guardian physically cares for your child, provides food, clothing, shelter and medical care and makes all decisions that you could make about your child’s education, health and welfare. A Guardian can also manage the child’s inheritance until he or she turns 18.

Naming a Guardian allows your child to move under the Guardian’s care more quickly and avoids costs and delays due to challenges or disputes. This makes the transition easier for your child, gives him or her stability and makes sure that someone you know and trust will take care of him or her.

11/22/2022

When Should I Make A Will?

When should I make a will?
Obviously, no one wants to think about his or her own death, let alone prepare for it. However, it’s important to understand that writing a will doesn’t mean you’re planning to die any time soon. In fact, it could take months or even years before you actually pass away. So, when should I make a will? Well, it’s not just because you might get hit by a bus tomorrow. Writing a will and other estate planning documents, and doing some other basic estate planning also gives you peace of mind knowing that your affairs are taken care of after you’ve gone. In its simplest form, a will is a legal document of instructions for the distribution of assets when you die. Plus, having a will means you won’t leave behind any unpleasant surprises for your loved ones. A will also saves your family unnecessary hassle, time and expense of the probate process.

Major life events in most peoples’ lives are when it makes sense either to make or update a will.

So, here’s when I should make a will.

1. Turning 18.
As a matter of fact, in most states in America, this is your first legal opportunity to write a legally valid will. So by all means, take advantage of it.

2. When you have accumulated some money or other assets.
If you don’t have any money such as bank accounts or assets such as a home or valuable personal property, then you really don’t need a will. But, if you have saved some money and care what happens to it when you die, then it may indeed be time to think about writing a will, For some, even as little as $500 in savings may be enough for you to want to direct what happens to it? What about $5,000? What about your car? The larger point is that if you die without a basic will, you’ll be what’s termed “intestate.” Then, your estate will be settled in accordance with your state’s laws about who inherits what.

3. When you get married (or divorced or remarried).
Changes in your most important relationship are a key reason to make or revise your will. Did you get married, remarried, or divorced? Or, maybe you are not married but cohabitating. If you want your partner to be one of your beneficiaries, does that change if they’re no longer married to you? Or, maybe you want to keep them but switch what’s left to them?

4. When you have children (and again when they become adults).
A will guarantees your children are provided for exactly as you want them to be. Most importantly, and this is often overlooked by parents, a will also names a guardian for your minor children if both parents die before they reach adulthood. The way you plan for your children in your will is going to change when they become adults. That’s a good time to update your will accordingly. You may also want to name one of them as your executor.

5. After you start a business.
Think about who would get your business when you die. Do you want to leave the company to your children or envision someone taking over the business? What if you want to leave the business to one child but not the other, how will treat the other child to balance things out?

6. Buying a home.
Buying a home or other real property will significantly alter the value of your property and could affect who you decide to name as your beneficiary as well as how much money you leave them. You might want to consider making some changes to your will if you’re planning to buy a house. If you move to a different state, you will want a new will that complies with the laws of that state.

7. It’s been a while.
You should review or revise your will at least once every four or five years, depending on your situation. There are many factors that can affect how you decide to distribute your assets after death. Changes in personal priorities, family relations, and even the law. If health issues affect your plans, they may force you to rethink them. For instance, if a family member starts suffering from Alzheimer’s disease, you might need to consider how he or she will best be cared for.

Write a Short Clear and Concise Document.
You should write a short, clear, and concise document describing how you’d like your estate to be divided among your heirs. Include details such as where your assets are located, and if you’ve given any money or goods to anyone else. Be sure to include your spouse, children, and relatives on your beneficiary lists. Update these lists whenever someone passes away or changes his or her last name.

When to Create a Trust
If you have more assets, including property or other investments, it may be a good idea to consider a trust. Trusts give you more control over how your assets will be distributed while you’re still living and after death, and can help you avoid probate. Additionally, creating a trust can give you control over how your assets are used after death.

Are you young, broke, single, and don’t have kids?
Well, maybe you don’t need a will just yet. Your will directs the distribution of assets and if you don’t have many assets to distribute then you may be okay without a will. For example, my friend Stephanie is single, doesn’t have kids, is 28 years old, and has a lot of student loan debt. Stephanie really doesn’t need a will yet because she doesn’t have dependents and she doesn’t have assets.

Do You Need an Estate Planning Attorney or Can You Do a Will Online?
There are several ways to create a will online but it isn’t always the best choice. Some websites offer free wills, others charge a fee. The most popular way to create a will is through a website called LegalZoom.com. They provide a sample will that you can customize to fit your needs. An estate planning attorney will evaluate your needs and then recommend exactly the right type of will or other estate planning document that is best for you.

10/17/2022

Most people don’t know how to hire a financial adviser. Often we will get a referral from a friend or a professional such as a lawyer or account. Often these are good methods of finding a good investment adviser. But, if you are creating a family trust and want to hire a financial adviser to manage the money in the trust, you probably want a traditional personal financial adviser or financial consultant. You should talk to more than one person before you choose. These companies provide complete investment management and holistic financial planning. Some are solo practices and others are part of a larger firm such as Raymond James, Merrill Lynch, Morgan Stanley or many others.

For my money, I would stay away from a solo practitioner since this firm probably cannot provide the broad array of services you may require. Also, solo firms don’t have the oversight you want for your trust and can lead to mismanagement and loss of trust assets.

Here are 10 questions to ask before you hire an Investment adviser:

1. Are you a fiduciary?
A fiduciary works in the best interest of the client. Nonfiduciaries typically only to recommend products that are “suitable” — even if they’re not the lowest-cost or most ideal for you. You’re paying a financial adviser to use his or her professional experience to do for you what you can’t do yourself which is make good quality investment choices – not just choose “suitable” investments.

2. How do you get paid?
Advisers can use a variety of fee structures. To keep it simple and avoid conflicts of interest, focus on fee-only advisers. They don’t get commissions for selling products.

Fee-only advisers might charge a percentage of the assets they manage for you (1% is common), a flat fee for services or an hourly fee.

Advisers who are paid on commission only make money on your account when they buy and sell. This is usually not in your best interest – it’s in the commission-based advisers interest and should be avoided at all costs.

3. What are my all-in costs?
In addition to paying the adviser, you may or may not incur other fees — and you’ll want to know what they are before you hire the investment adviser and move all of your money to his/her firm. Fees can decimate your savings over time. A recent survey found that a 1% mutual-fund fee (which you would incur in addition to the 1% fee the financial adviser is charging) could cost millennials $590,000 in retirement savings. Your financial adviser can and should only recommend investments that don’t carry additional fees. Fidelity, Vanguard, and many others are good examples of funds that don’t carry fees.

4. What are your qualifications?
Perhaps the should be the first question you ask: Financial professionals can have a confusing list of initials behind their names. Whether a financial professional goes by “investment adviser” or has the CFP designation, it’s your job to vet them. The Financial Industry Regulatory Authority’s (“FINRA”) professional designations database will tell you what they mean; if there are any education requirements; if anyone accredits the designation; whether there’s a published list of disciplinary actions; and if you can check professional status.

Go to the FINRA website to check an adviser’s record at BrokerCheck.

5. How will our relationship work?
Put another way: How much access will you have to the adviser? You want to know how often you’ll meet and whether he or she is available for phone calls or emails outside of scheduled appointments. If you are new to managing money, you may need a significant amount of handholding. Not all advisers are ready to give you this level of service.

6. What’s your investment philosophy?
It’s important to ensure you have the same investment philosophy. Here’s why: “You have to believe in what they’re doing to stick with it, When financial advisers really do their job is when the market is down and they can convince you to stick to the same page, so you don’t sell at the bottom of a market cycle.

It’s also important to make sure you and your adviser align on investment style. For example, if impact investing is important to you, you may want to ask whether or not your adviser will be able to help you create a portfolio that aligns with your values.

Also ask: Who are your typical clients? Find an adviser who is used to a situation like yours and able to help you meet your goals.

7. What asset allocation will you use?
You’ve heard how important it is to be diversified, right? Your asset allocation is how you create a diversified portfolio. This is what drives most of your returns.

Depending on your age and whether you are investing for income or growth, you probably don’t want someone who is just going to pick U.S. large-company stocks, your portfolio should include domestic and international stocks, and small-, mid- and large-cap companies.

8. What investment benchmarks do you use?
Advisers should use benchmarks that directly relate to what they’re invested in, or be able to explain why they don’t.

Some managers will use a “straw-man benchmark.” For example, the adviser says: “My goal is to beat the Standard & Poor’s 500.” This means the adviser will compare performance to the S&P 500 as a measure of his or her performance.

9. Who is your custodian?
Ideally, your financial adviser has hired an independent custodian, such as a brokerage, to hold your investments, rather than act as his or her own custodian — à la Bernie Madoff, the notorious financial advisor who defrauded clients through a multibillion-dollar Ponzi scheme.

That provides an important safety check. If your adviser sends you performance information … and it tells you how much the adviser says is in your account, you should be able to go online any minute and double-check.

10. What tax consequences do I face if I invest with you?
This helps ensure the adviser has your tax bill in mind when making financial decisions. And asking about taxes and fees is a way to explore what your estimated net return might be.

11. Bonus: Can the firm your financial adviser works for be a trustee for your trust?
This can be important if you are setting up a special needs trust or if you are putting a large sum of money into a trust for a minor. It is often very beneficial to have a professional trustee both for professional oversight but also for continuity if the beneficiary is young and the funds in the trust must provide care for many years. This can occur for example if a minor is the recipient of a large lawsuit settlement. A corporate trust manager such as Garden State Trust or Peapack Gladstone Bank and Trust are two good examples of professional trustees that can not only manage the money in the trust but also do all of the accounting and reporting as well as prepare and file tax returns. A corporate trustee usually does not charge any additional fees for this service if the funds are under the management of the trust company. If there is a separate financial adviser who is managing the money, a typical fee might be 3/4 of 1% annually (charged monthly). Such an arrangement can provide a great deal of oversight to your funds and ensure your financial adviser is not overcharging you and is making sound investment choices.

What they are: An investment adviser is an individual or company who is paid for providing advice about securities to their clients. Although the terms sound similar, investment advisers are not the same as financial advisors and should not be confused. The term financial advisor is a generic term that usually refers to a broker (or, to use the technical term, a registered representative). By contrast, the term investment adviser is a legal term that refers to an individual or company that is registered as such with either the Securities and Exchange Commission or a state securities regulator. Common names for investment advisers include asset managers, investment counselors, investment managers, portfolio managers, and wealth managers. Investment adviser representatives are individuals who work for and give advice on behalf of registered investment advisers.

So in plain English – there are advisors who are nothing more than stock brokers and then there are Advisers who are true planning professionals.

Choose Wisely.
When making your choice of financial adviser, do it very carefully. Interview more than one potential adviser and ask each one the questions above. Then, consider each potential adviser’s answers carefully.

09/26/2022

When To Update Our Wills: Newly married with a new baby.

Q: I was recently married and we just had a baby. My husband has a Will that he had prepared before we were married leaving everything to his sister. Is that will still effective or should he make a new one? If he doesn’t update it, will everything actually go to his sister?

A: It is very important to update Wills and account beneficiaries upon the occurrence of a significant life event such as a marriage or the birth of a baby. Especially if the previous will or beneficiary designation would operate to leave assets to the wrong person.

In your case, your husband’s Will would leave his assets to his sister and I’m sure, now that he is married, that isn’t what he would want. The same may also be true if he has his sister designated as a beneficiary on a retirement account or life insurance or both.

As his wife, if he were to die without making the change, you would be forced to commence a probate action in court to have his assets that were given to his sister, given to you as he probably would have wanted. Short of you being able to resolve this matter directly with the sister, a court battle could be ugly and of course costly.

You should discuss with your husband right away the need to update his Will and beneficiaries on his retirement accounts and life insurance policies naming you and his new baby as his heirs.

Updating your husband’s Will, and of course making one for yourself, is important now that you have a child. In addition to distributing your assets according to your wishes, your Wills should also designate a guardian to take care of your child in the event something happens to both of you.

Don’t delay on getting this done. This is a simple and inexpensive task and will avoid unnecessary confusion, litigation and expense.

09/26/2022

What is the difference between a living will and advance healthcare directive?

What is the difference between a living will and an advance healthcare directive? Well, these terms can be confusing but the short answer is that a living will is a type of advance directive, while “advance directive” is a broad term used to describe any legal document, or set of documents, that addresses your future medical care. Living wills are advance directives, but not all advance directives are living wills.

What is an advance directive?

An advance directive is any legal document or set of documents that expresses your wishes to your doctor about your medical care when you are incapacitated and unable to communicate.

When does the Advance Healthcare Directive take effect?

The Advance Directive only takes effect when you are considered incapacitated and cannot express your desires for yourself.

This could happen if you:

Are in a coma
Had a stroke
Suffered from dementia
Were under anesthesia
Had an illness that left you too sick to communicate
In our office and in New Jersey generally, an Advance Directive includes two documents: the Living Will and the Medical Power of Attorney.

In New Jersey, an Advance Directive may include both an Instruction Directive and a Proxy Directive. An Instruction Directive (Living Will) is a writing which provides instructions and direction regarding the person’s wishes for health care in the event that person subsequently lacks decision-making capacity. A Proxy Directive (Medical Power of Attorney) is a writing which designates a person of your choice to be your health care representative in the event the you lack decision-making capacity.

What is a Living Will?

A Living Will, permits an individual to provide a general statement of his or her wishes about health care in the event the individual has lost the ability to express his or her desires. A Living Will provides you the ability to write down your intentions regarding medical procedures in the event you can no longer speak for yourself.

The purpose of a Living Will is to provide a way that an individual can say “no” to medical treatment which prolongs death rather than improves recovery or quality of life. Note a Living Will does not permit a physician to take pro-active steps to terminate life, but rather allows you to instruct your doctor to withhold treatment in certain circumstances.

What is a Medical Power of Attorney?

The Medical Power of Attorney is a document which permits you to appoint an individual to make decisions on your behalf. In New Jersey, this is known as a Proxy Directive and may be included in your Advance Directive.

Where should I keep my Advance Directive?

The Advance Directive does you no good unless it is available. Since it obviously comes into play when you have lost the ability to express yourself, it is important for individuals other than yourself to know where it is. Most hospitals will ask you if you have executed an Advance Directive prior to admission. Certainly, the individual whom you have appointed as your proxy should have access to your Advance Directive.

When you have completed your Advance Directive, make several copies. Keep the original document in a safe but easily accessible place and tell others where you have stored it. DO NOT KEEP YOUR ADVANCE DIRECTIVE IN A SAFE DEPOSIT BOX. Have it readily available upon admission to a hospital or nursing facility. Give copies of your Advance Directive to the individuals you have chosen to be your Health Care Representative and Alternate Health Care Representative. You may also gives copies of your Advance Directive to your doctor, your family, clergy and to anyone who might be involved with your health care. Keep a completed ID (identification) card on your person and carry your Advance Directive with you when you travel.

09/05/2022

Qualify for Medicaid With a Miller Trust

Many seniors find themselves in need of Medicaid to pay for their long-term care but are surprised to learn that their modest monthly income may disqualify them. The reason for this is that Medicaid is a “means-tested” benefit. In other words, you must not have income exceeding certain thresholds in order to qualify and receive Medicaid benefits. For example, in New Jersey, the monthly income limit for nursing home or community-based services is $2,523 for individuals and $5,046 for married couples.

Medicaid expects all of an applicant’s monthly income, besides a monthly personal needs allowance and Medicare premiums, to go toward nursing home costs. So, what if you have more income and other expenses? A Miller Trust may help you resolve this dilemma.

A Miller Trust is a Medicaid planning tool that can assist you in meeting the income limits and qualifying for Medicaid. Unlike other planning tools, Miller Trusts do not have specific disability or age requirements.

How Does a Miller Trust Work?

If your income exceeds Medicaid’s income limit, you can deposit the amount of your excess income into a Miller Trust – also referred to as a “qualified income” trust. Once it is deposited into this trust, it is not counted as income by Medicaid. However, to qualify, a trust must be irrevocable, which means you cannot cancel or change it. Once you put money into the trust, you cannot get it back directly. However, the trust can pay certain expenses on your behalf.

A Miller Trust is a good option for any Medicaid applicant needing long-term care services, whether at home, in their community, or in a skilled nursing care facility. This trust is created by the applicant, a guardian, or a person with a properly drafted power of attorney. A trustee is chosen to manage the trust and the income deposited. Anyone other than the Medicaid applicant can serve as a trustee.

Once the trust is set up, the trustee establishes a bank account to receive excess income from the Medicaid applicant. The income can only be used for certain expenses. For example, it may be used to pay the personal needs allowance of an individual in a nursing home, Medicare premiums, bills not covered by Medicaid, or supplement costs of a nursing home.

Another requirement of a Miller Trust is that the applicant’s state Medicaid agency will be the beneficiary of any remaining funds in the trust upon the death of the Medicaid applicant. The amount the state receives is limited to the total value the state paid in long-term care on behalf of the applicant. Any amount remaining after this payment may go to a person the applicant chooses.

Medicaid Income Cap

You should be aware that not every state allows Miller Trusts as a method to qualify for Medicaid. Currently, only about 25 states, known as “income cap” states, permit it. Other states do not impose an income limit for nursing home care, and so there is no need for a Miller Trust in these locations. For example, in Massachusetts, you would pay all your income, minus certain deductions, to the facility, and Medicaid would pay the remaining cost.

Before creating a trust, it is important to speak with an elder law attorney to ensure this option is right for you. If you live in a state where this is not allowed, there may be other options, such as pooled income trusts, which serve a similar purpose.

08/26/2022

What You Can’t Do With a Will

Most people know what a will does but there are things that it won’t cover. A will is just one part of a comprehensive estate plan. Here is what you can’t do with a will.

A will is a legally-binding statement directing who will receive your property at your death. It is also the way you appoint a legal representative to carry out your bequests and that you name a guardian for your children. Without a will, your estate is distributed according to state law, rather than your wishes. Property distributed via a will goes through probate, which is the formal process through which a court determines how to distribute your property.

Although a will is one main way to transfer property on death, it does not cover all property. The following are examples of property you can’t distribute through a will:

Jointly held property. Property that is co-owned with another person is not distributed through your will. Joint tenants each have an equal ownership interest in the property. If one joint tenant dies, his or her interest immediately ceases to exist and the other joint tenant owns the entire property.
Property in trust. If you place property into a trust, the property passes to the beneficiaries of the trust, not according to your will.
Pay on death accounts. With a pay on death account, the account owner names a beneficiary (or beneficiaries) to whom the account assets pass to automatically when the owner dies.
Life insurance. Life insurance passes to the beneficiary you name in the life insurance policy and isn’t affected by your will.
Retirement plan. Similar to life insurance, money in a retirement account (e.g., an IRA or 401(k)) passes to the named beneficiary. Under federal law, a surviving spouse is usually the automatic beneficiary of a 401(k), although there are some exceptions. With an IRA, you can name your preferred beneficiary.
Investments in transfer on death accounts. Some stocks and bonds are held in accounts that transfer on death to a named beneficiary. These accounts will bypass probate and go directly to the beneficiary.
In addition to not being able to transfer certain types of property with a will, there are other things that you cannot use a will for. The following are examples of items that should not be included in a will:

Funeral instructions. A will is not the best place to put your funeral instructions. Wills are often not found until days or weeks after death. It is better to leave a separate letter of instruction that is located in an easily accessible location.
A provision for a child with special needs. If you are leaving money to a child with special needs, a will is not the best instrument. Receiving an inheritance directly can make the child ineligible for benefits. It is usually better to set up a special needs trust to provide for the child.
A provision for a pet. You cannot leave money directly to a pet in a will. You can name a caregiver for a pet and provide money to them to care for the pet, but the caregiver is not legally obligated to use the money on the pet. A pet trust is the most secure way to provide for a pet.
Certain conditions on gifts. You may be tempted to make gifts conditional on the recipient’s behavior or actions. However, there are certain conditions that are not allowed. The condition cannot be illegal, and the gift cannot be contingent on the marriage, divorce, or change of religion of the heir.
A will is not the only component of an estate plan. There may be much more for your to consider.

Dublin Packard Attorneys at Law

11/22/2022

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