Unlike wills, trusts need not be funded at their creation. To bequeath property via a will, all of the relevant property must be sufficiently described at the time the will is executed. Unlike wills, trusts can be funded at any point in time. In other words, a trust can be properly created but contain no assets at its inception. It can even be funded after the creator’s death. The value of the trust is determined by the assets transferred into it, and is subject to change over time. Additionally, unlike wills, trusts can be either revocable or irrevocable. Irrevocable trusts protect the trust principal more completely than a revocable trust can. Wills, on the other hand, are always revocable, assuming the testator retains the mental capacity required to execute a new will.

 There are many different types of trusts, and one should seek competent legal counsel to fully understand if a trust is right for them, and if so, what sort of trust would best suit their needs. In this discussion, I will touch on three types of trusts: Living Trusts, Testamentary Trusts, and Special Needs Trusts.

A Living Trust is one of the most common types of trusts. A Living Trust is created by an individual, referred to as the grantor, during the grantor’s lifetime. The purpose of a Living Trust is to enable the grantor, while alive, to place assets “in trust” for specified beneficiaries, which are to be managed by a trustee. The trustee, appointed by the grantor, has the legal right to manage and control the trust assets. As such, the trustee is in charge of distributing the trust assets according to the provisions of the trust. It should be noted that the grantor can appoint herself to be trustee if she wants to retain the power to control of the trust assets during her lifetime. The trustee is legally bound to carry out the instructions detailed in the trust, and has a fiduciary duty to the beneficiaries of the trust. One of the primary purposes of placing assets in a Living Trust is to ensure that the assets are properly managed in the event that the grantor becomes incapacitated or loses the ability to manage her property effectively. Much like a will, upon the grantor’s death, the trust assets will be distributed according to the provisions outlined in the trust.

  A Testamentary Trust is a trust that is created via the grantor’s Last Will and Testament. Accordingly, a Testamentary Trust does not become effective until the grantor’s death. Testamentary Trusts are commonly used to control how and when beneficiaries will be able to access the trust assets. Individuals who are leaving sums of money to minor children, for example, will commonly employ a Testamentary Trust to dictate how much is given to the minor child, when they will receive it, and even what the funds can be used for.  

  A special needs trust is a complex instrument created for the sole purpose of preserving the governmental benefits that a disabled person is receiving. Put alternatively, a special needs trust allows an individual with special needs to receive income or assets without affecting any current or future benefits that person receives from the government. A special needs trust differs from the trusts described above in that the trust principal cannot be given directly to the disabled beneficiary. If this occurs, the beneficiary’s benefits may be put at risk. Rather, the trust assets can only be used to contribute towards the beneficiary’s out of pocket expenses relating to their disability, health care costs, education costs, and the like. If the trust is not created properly, the individual for whom the trust is intended to protect can lose her benefits. Importantly, people in the beneficiary’s life should be made aware of the trust and its purpose, because gifts or inheritances made to the beneficiary must be made in accordance with the terms of the trust. Otherwise, the individual’s benefits may be put at risk.

 Trusts are easier to create than wills because they do not have the complex statutory execution requirements that wills do. However, on the whole, trusts are usually more complex than wills, and often not as easy to modify or revoke. It is always advisable to consult with an attorney who can properly advise you of the various types of trusts and which one would best suit your particular needs. Call us at (856) 227-7888 and schedule a free 30 minute estate planning consultation.

If you were arrested and charged with driving under the influence, you are facing a host of repercussions. These include the suspension or loss of your driver’s license, possible jail time, numerous court appearances, and restrictive conditions such as Ignition Interlock devices. Of course, it is worth noting that along with the legal ramifications, a DUI charge carries with it increased stress, potential sleep loss, possible damage to your reputation, insurance rate increases, and even, perhaps, the disrepair of a relationship.

In New Jersey, it is common practice for municipal and traffic violations to be downgraded via a plea agreement with the prosecutor, which of course, is subject to approval by a Judge. However, per New Jersey statutory law, DUI and drug related offenses are distinguished from other municipal infractions in that they cannot be downgraded via a plea agreement. In fact, it is illegal for a DUI charge to be pled down via an agreement with the prosecutor.

What that means is, if you were recently arrested for DUI, you need competent and experienced legal representation. A trained legal eye will be able to review your case carefully and evaluate the facts of your situation, the circumstances surrounding the arrest, and the state’s evidence against you. Further, an attorney can gather evidence in your favor, ascertain whether an expert witness would be beneficial, suppress evidence against you, and identify issues of fact that may undermine the state’s case. We make no guarantees. If you did it, and/or the state can prove you did it, we can work to get you the minimum available sentence. We can help you understand your rights. We can require the State to prove it’s case against you. And if they fail to do it, we can get it thrown out.

So why do you need a lawyer for a DUI if there’s little hope of “getting out of it”?  Because without a lawyer, you’re lost, and you have little to no hope at all of getting out of it, even if the State fails to meet it’s burden, because you won’t know it.

Experience, dedication, and customer service are among the most important qualities an attorney can possess. At the Law Offices of Lynda Hinkle, our attorneys have built their reputations on these qualities, and will put them to work on your behalf. We understand that people make mistakes, both large and small, and we will never pass judgment on you. We’ll be by your side and we’ll get you through it.  Call us at (856) 227-7888 to set up a free consultation.

- by Matthew S. Raphan 

When determining whether continued financial support for children attending college and/or parental contributions to college education are appropriate, the Court is to consider relevant case law and statutes, and to use the New Jersey Child Support Guidelines if appropriate. The computation of child support can never be made in a vacuum as there is a close relationship between college costs and child support: that is, the higher the child support order, the less money remains available to contribute to college expenses. Another component impacting this child support calculus considers what portion of the expenses, if any, the student must be responsible to bear. Of necessity, many students share the financial burden of  meeting expenses by utilizing savings, summer wages, co-op jobs, work study payments, or part-time employment. In many cases, it also may be more appropriate for a parent to provide direct payments to the student for some of the child’s support needs rather than providing payments to the other parent in the form of child support.

The leading case in the State of New Jersey with regard to college expenses and child support is Newburgh v. Arrigo. Writing for the Court in Newburgh, Justice Pollock set forth a non-exhaustive list of twelve factors a court should consider in evaluating a claim for contribution toward the cost of higher education. The enumerated factors are: (1) whether the parent, if still living with the child, would have contributed toward the costs of the requested higher education; (2) the effect of the background, values and goals of the parent on the reasonableness of the expectation of the child for higher education; (3) the amount of the contribution sought by the child for the cost of higher education; (4) the ability of the parent to pay that cost; (5) the relationship of the requested contribution to the kind of school or course of study sought by the child; (6) the financial resources of both parents; (7) the commitment to and aptitude of the child for the requested education; (8) the financial resources of the child, including assets owned individually or held in custodianship or trust; (9) the ability of the child to earn income during the school year or on vacation; (10) the availability of financial aid in the form of college grants and loans; (11) the child’s relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance; and (12) the relationship of the education requested to any prior training and to the overall long-range goals of the child. Six years after Newburgh was decided, the New Jersey State Legislature essentially approved those criteria when amending the child support statute, N.J.S.A. 2A:34-23(a). Thus, a trial court should, when deciding whether child support is appropriate for an adult child attending college, balance the statutory criteria of N.J.S.A. 2A:34-23(a) and the Newburgh factors, as well as any other relevant circumstances, to reach a fair and just decision whether and, if so, in what amount, a parent or parents must contribute to a child’s educational expenses. Each case must be decided upon its own merits and with close scrutiny of all relevant factors.

Further complicating this analysis is the fact that where child support in the State of New Jersey is almost exclusively calculated using the New Jersey Child Support Guidelines, the Guidelines are only intended to apply to children who are less than 18 years of age or who are more than 18 years of age but still attending high school or a similar secondary educational institution. The Guidelines are not intended to apply to adult children attending college and living away from home, as such children have been largely deemed to have “move beyond the sphere of parental influence and dependence.” However, the Guidelines may be applied, in the court’s discretion, to provide support for students over 18 years of age who commute to college.

So what can we say with certainty about child support orders pertaining to adult children who are attending college and  about required contributions to the college expenses of your adult child and how these two obligations relate to one another? Well,  the Court may very well choose to utilize the New Jersey Child Support Guidelines to calculate a parent’s child support obligation with regard to a child who is living at home but attending college full time. The law states clearly that the Guidelines may not be used to determine a child support amount for that same child should he or she be attending college full time but no longer living at home. This does not mean, however, that there will necessarily be no support obligation in such a situation, it simply means that use of the Guidelines to set such an obligation would be incorrect. Divorced parents of adult children will generally be held to have a duty to contribute to the college costs and expenses of their adult children and that these contributions will be determined after analysis of a long list of factors. Lastly, and most importantly, we can say that this is a complicated analysis and that in making the analysis, it is easy for the Court or even the parties involved to miss a factor which would have greatly altered the final decision. Our diligence helps make sure that our Clients receive their fair share of support for their children and the future their children are building upon the foundation of a college education. Call us anytime at 856-227-7888  for a free consultation on this or any other family law-related issue. We’re here to help.

- by Jeffrey Alan Kerstetter 

 1. a. A trust for the care of a domesticated animal is valid. The intended use of the principal or income may be enforced by a person designated for that purpose in the trust instrument, a person appointed by the court, or a trustee. The trust shall terminate when no living animal is covered by the trust, or at the end of 21 years, whichever occurs earlier.

     b.     Except as expressly provided otherwise in the trust instrument, no portion of the trust’s principal or income may be converted to the use of the trustee or to any use other than for the benefit of the animal designated in the trust.

     c.     Upon termination of the trust, the trustee shall transfer the unexpended trust property as directed in the trust instrument. If no directions for such transfer exist, the property shall pass to the estate of the creator of the trust.

     d.     The court may reduce the amount of the property transferred if it determines that the amount substantially exceeds the amount required for the intended use. The amount of any reduction shall be transferred as directed in the trust instrument or, if no such directions are contained in the trust instrument, to the estate of the creator of the trust.

     e.     If no trustee is designated or if no designated trustee is willing or able to serve, a court shall appoint a trustee and may make such other orders and determinations as are advisable to carry out the intent of the creator of the trust and the purpose of this act.

This is all very fancy language to say that you can create a trust that allows money from your estate to be used specifically for the care of your beloved pet as long as he or she is alive. The way you set up a pet trust in order not to run a-fowl (pun) of the law’s provisions is very important.  Just “leaving” your pet funds in your will as though they were human (and we all know they are better than human!) is not going to work.  You need a legal professional to assist you in creating a pet trust that carries out your wishes for your little buddy.

Pet trusts are not just for the wealthy. Anyone with a pet that they don’t want to wind up euthanized because no one will take responsibility for him or her should consider a pet trust. Even a modest amount of funds in a trust for your pet can ensure that your relatives or friends take on your little loved one’s care. Gifts that reward specific caregivers for taking responsibility under a pet trust can also be “insurance” for the safety of your dog or cat (or parrot, or turtle or whatever domesticated animal you have).

Call today for a free consultation on how to protect your pet! 856-227-7888.

One of the primary roles of an estate attorney is to act as a planner for a client’s future. Perhaps the paramount of planning for the future is through the creation of a Last Will and Testament. But why you might ask do you need an attorney? The short answer is, a lot can go wrong without one. Everything an estate attorney does ensures nothing goes wrong. They do this by having a thorough and current understanding of the law which can often be quite complicated.

So what exactly is an attorney doing when they help you plan for the future? Their primary objective is to effectuate your intent. They make sure your finances and belongings pass to who you want. They make sure your children have a home, your pets are loved, your loved ones are taken care of, and so much more.

Homemade wills and poor lawyering can often lead to will invalidation—An invalid will means your intent is thwarted, or worse, your belongings end up exactly where you don’t want them. Poor planning and execution can also mean a will may go through probate which is a lengthy and costly litigation process which questions a will’s authenticity; the arch nemesis of someone planning for the future.

The beauty of going to an attorney is they are the ones well versed in the pesky statutes, case law, and the numerous formalities required by law. They are trained to spot potential future issues and craft wills in a way that insures your intent is accomplished. Experienced attorneys are constantly dealing with issues that you may have never thought of.  Even better, a will is inexpensive!

You should take comfort in knowing that attorneys are working for you. They want your objectives achieved as much as you do, and they do that by a comprehensive understanding of the law, educating you, listening attentively, and asking the right questions.

 If you don’t have a will, now is a great time to get one. If you already have a will but feel it’s outdated, it might be a good time to review your will. Feel free to call our office at (856) 227-7888 for a free consultation with one of our compassionate and experienced estate planning attorneys. We are here for you!

Contributed by Joseph Kilpatrick, Law Clerk 

At the Law Offices of Lynda Hinkle, we take the unique needs of the domestic violence survivor very seriously, but whether you are with us or another attorney, you have certain rights you can and should assert with any legal professional that you hire to help you through this process.

The Domestic Violence Survivor’s Lawyer Bill of Rights

You have a right to a lawyer who:

* Carefully explains how the law affects you

* Helps you determine what your goals are in any litigation and how to best reach those goals

* Is not difficult to get ahold of when you need a question answered (perhaps not in the middle of the night! But lawyers should return your calls within a business day or have someone call and explain why they cannot)

* Explores with you how negotiation between your lawyer and either the abuser’s attorney or the abuser themselves may positively or negatively impact your situation

* Takes seriously your fears about retribution and your need to protect yourself and helps you develop a safety plan

* Respects your right to make your own decisions as to how things should progress

* Does not pressure you to enter into agreements that you feel unsafe about

* Considers the needs and safety of your children as well as you

* Understands that leaving is the most dangerous time

* Is neither afraid to deal with your abuser, nor the sort to antagonize the abuser inappropriately(at times it is appropriate and necessary to back down a bully, but not just to humiliate them)  so that they redirect their anger at you

* Understands that you have a right to whatever feelings you have — even if you still love the person hurting you

* Can help connect you to resources to address other physical and emotional needs you may have.

Stay safe. Find a good lawyer.  Thrive.

Seniors are vulnerable for a host of reasons.  Fear and panic about their financial situation.  Ill health.  Untrustworthy relatives who they think they can trust.  Mental decline.  A faith in what they should be able to take for granted:  that they will be afforded respect.

Don’t fiddle with your legal health

At the Law Offices of Lynda Hinkle, we offer seniors the respect they deserve and have earned. We can assist with planning an estate and making recommendations of reputable financial advisors, assist relatives in obtaining guardianship if an elderly person is incapacitated, help seniors form plans for getting help if they become incapacitated in the future, and, in some circumstances, litigate against those who have committed fraud against a senior.  Call for a free, confidential consultation: 856-227-7888.  We will travel to YOU if you are disabled or in a nursing home.

The Investor Protection Trust offers the following helpful booklet:  Take Charge Before A Bad Deal Takes YOU as well as other resources at their website. 

People in Your Life

            Relationships are fluid, and people come and go from our lives regularly. It’s likely that the relationships with people named in your will have changed over the years. Perhaps your favorite niece isn’t so favorite anymore and you don’t want to leave her your car. Maybe your assets have grown considerably and you want a favorite charity to reap the benefit. Or, maybe a second marriage has brought loving new people into your life.

If you have minor children, we recommend that you name a guardian in the event that something should happen to you or your spouse. If your children have reached the age of majority, you may wish to consider revising certain bequests, or even naming one of them as executor. Consider the people you named as trustees, executors and guardians; are they still of sound mind and capable of serving in the role you’ve designated for them? Has one of your named beneficiaries passed away or become incapacitated? It’s crucial that your will reflects any such changes.

What You Own

            You may need to revisit your will if your estate has experienced a substantial increase or decrease in value. Perhaps you have purchased or sold a major asset recently, started a business, or received an inheritance? Or, maybe you’ve acquired a new personal belonging that you know a loved one will cherish. You’ll want to update your will to reflect that. You may also have acquired enough from the last time to need to consider some tax planning.

Where You Live

            If you have relocated from the state where you initially executed your will, you should consult an attorney in your new place of residence to determine whether it’s still valid. Laws vary from state to state, and you shouldn’t assume that your will or other estate planning documents meet your new state’s requirements.

What To Do

            If you haven’t looked at your will or other estate planning documents in a few years, now is a great time to begin your initial review. Feel free to call our office at (856) 227-7888 for a free consultation with one of our compassionate and experienced estate planning attorneys. We are here for you.

Military Housing in Newburgh, New York

by Jeffrey Alan Kerstetter

As a servicemember or the spouse of a servicemember, you know all too well the demands of travel and relocation when it comes to serving your Country. You may live in one State today, another next month, and yet another the year after that. So, for legal purposes, where do you actually “reside?” Where is your “domicile?” Where exactly should you file your Complaint for Divorce in order to make sure that the Court will have jurisdiction over the matter and that your Final Judgment of Divorce will be valid and binding?

First, it is crucial to know that successfully obtaining a valid and legally-binding Final Judgment of Divorce requires complying with State substantive and procedural law. The choice regarding in which State you should file for divorce is an important one and one that may affect many aspects of your divorce, including tax issues, alimony, equitable distribution of things like debts and retirement assets, and support for you or your children. Remember that when you file a Complaint for Divorce, the laws of the State where you file that Complaint will govern your divorce — not the laws of the State where you were married or the State where your spouse lives, if those are different.

The first thing you need in order to file for divorce and be sure that the Court will have jurisdiction over the matter is for at least one party to be “domiciled” within the State where you wish to file for divorce. A person is “domiciled” where they have “legal residence.” Your domicile is that one place on Earth to which you always intend to return and in which you have some measurable amount of physical presence, either your person or certain types of property or obligations like taxes. Your domicile is your true fixed and permanent home. In the United States Military, there is a difference between the terms “Home of Record,” and “Legal Residence” or “Domicile.” “Home of Record” and “Legal Residence” or “Domicile” may, or may not be the same address. A servicemember’s “Home of Record” is the place where that person was living when they entered the military (or, re-enlisted in the military, if one chooses). “Home of Record” is used to determine travel entitlements when one separates from the military. It has nothing to do with voting or paying taxes, registering vehicles, nor any of the other privileges of state residency. “Home of Record” can only be changed if there is a break in service of more than one day, or to correct an error. “Legal Residency,” or “Domicile,” on the other hand, refers to the place where a servicemember intends to return to and live after discharge or retirement; that one place they consider their “permanent home.” It is that State in which a servicemember, or the servicemember’s spouse, is domiciled where a Complaint for Divorce may be filed.

Be sure that you base your choice of where to file your Complaint for Divorce on either yours or the servicemember’s “legal residence” or “domicile.” Some States let servicemembers file for divorce simply by virtue of the fact that they are stationed there, even if the servicemember doesn’t intend to make that State a permanent home. Be wary of relying on such statutes to get your divorce. There’s a theoretical possibility that another State might refuse to recognize a divorce that’s based on a rule like this, sometimes called a “faux residency” law. To play it safe, it’s generally better to file where either you or the servicemember is domiciled under the rules discussed above.

At the end of the day, a servicemember or servicemember’s spouse has a choice of the following three states in which to file for a divorce: the State where the spouse legally resides, the State where the servicemember is stationed (if that State has a residency statute applicable to servicemembers), or the State where the servicemember claims legal residency or domicile (that one place where the servicemember plans to live after his or her discharge or retirement from military service). While there are many other factors you may wish to consider before you choose one of these options with regard to filing your Complaint, there is no escaping the need to file your Complaint for Divorce in a State with proper jurisdiction, a State where either you or the servicemember is truly “domiciled.”

Confused? That’s completely understandable. It’s a complex issue and one with serious implications for you as you move forward. Divorce can be complicated, especially when a servicemember is involved. That’s why we’re here. We handle military divorces and we know the law on domicile. We can help you make an informed decision about where to file. Call us anytime for a free consultation, we’re here to help:  856-227-7888 to set up a consult in our Marlton, Blackwood or Woodbury office or by phone or Skype if you are out of the area.

Because our firm deals with elder law, estate planning, estate administration, estate litigation and other complex matters affecting those over 65, we are uniquely positioned to apply our experience in divorce matters to your needs.  We have handled divorces of people in their 60′s, 70′s, 80′s and 90′s.

Some ask, why would a person over 80 bother about getting a divorce? There are a number of important considerations. First, no matter what age you are, you are entitled to having the life you want to live:  entitled to take a stand for your happiness and security.  Secondly, their are economic reasons that divorce can be advantageous when the relationship isn’t working out. Finally, some are concerned about the fact that their spouse may inherit an elective share of their estate, even though they don’t want to leave them anything at all — even if the parties have been separated for many years.   No matter what the reason, this can be a tricky mine field to navigate, filled with potential explosive issues and concerns that we are careful to help you avoid.

If you are over 65 and considering divorce for any of the reasons above, or your own reasons,  if you are being sued for divorce and you need representation from compassionate attorneys who will treat you with the respect you deserve,  or if you are a loved one of an elderly person that needs help dealing with this issue,   please call for a free, confidential consultation.  If you are unable to come to our offices for health reasons, we can come to you or do a phone consultation. Our number is 856-227-7888 and everyone here looks forward to serving you.