What is a will?
A will is a legal document that designates the distribution of an individual’s estate upon death. An individual must be at least eighteen years of age to execute a will. This document specifies how property is to be divided, to whom it shall be distributed, and who is in charge of the process. If an individual does not have a will, an appointed administrator distributes the estate according to the laws of the State of New Jersey. It is therefore very important for individuals over age eighteen to have a will to protect specific interests and intentions concerning the distribution of their property.
As a general rule, a will is probated in the state and county in which the decedent is a legal resident at the time of death.
Whatever type of will is executed, it should be kept in a safe place that is accessible in case of an emergency or upon the death of the person who created the will. Executors, family members, or those close to the testator, or person who created the will, should be aware that the will exists and where it is kept.
Getting a copy of a will
To get a copy of a will, call our office at 973-285-6500 for information and fees.
Types of Wills
A standard will is one that is written, signed by the will’s creator (testator), and witnessed by two individuals. A standard will also contains an “attestation clause” that declares it to be that last will of the testator.
A self-proving will is a standard will whose witnesses sign at the time the will is notarized. This will includes an Acknowledgement and Affidavit Relating to Execution of the Will that is attached to the original will. Having a self-proving will eliminates the need for witnesses to appear before the Surrogate to have the will admitted to probate.
A holographic will is one that bears no witnesses. Such a will must be signed by its creator. A holographic will can be admitted to probate only in Superior Court, and in the manner prescribed by the Rules Governing the Courts of New Jersey. This type of will is more vulnerable to challenge.
Tips for drafting a will
A will is a legal document that is not effective unless properly prepared and executed. Individuals should not try to execute a will unless they are knowledgeable about the requirements of a legally enforceable will or have had the opportunity to consult legal counsel. The process of executing a will can be simple, but certain items should be kept in mind while going through the process.
- All wills should state what an individual wants done with his or her remains and whether he or she wants to have a funeral and/or burial.
- All beneficiaries must be specifically named and amounts of bequests specified.
- Alternative beneficiaries also should be named in the event a designated beneficiary dies before the person who created the will. If money or assets remain in the testator’s estate, an individual should be named to receive the remainder in specific dollar amounts or percentages.
- If a trust is established in the will, a trustee and an alternate trustee must be designated.
- All wills must designate an executor and an alternative executor who will carry out the instructions set forth in the will.
- If there are children, appoint a guardian and alternative guardian for any children under age 18.
- A will also should provide that an executor, guardians and trustees will serve without bond.
- All wills and codicils (additions or supplements) should have a self-proving clause that is signed and witnessed by 2 witnesses (who are over 18 and competent). All of them must sign before a notary.
Remember: The above list is NOT an exhaustive list of all of the “in’s” and “out’s” of drafting a will. It is often wise to consult an attorney before doing so.
Changing wills and codicils
A codicil is an addition or supplement to the original will that adds to or replaces part of the original will. A codicil is offered to probate in addition to the original will and must make reference to the original will. A codicil is often used when the person named in the will undergoes some change in his or her life, such as a marriage, divorce, birth or death of a child or a witness or executor, purchase or sale of real property, or a change in financial status. Changes in the federal estate or state inheritance tax laws also may warrant a codicil. An executed will should be reviewed upon the occurrence of any of the above events to evaluate the need for a codicil or a new will.
If someone dies without a will
If an individual dies without a will, the laws of the State of New Jersey provide for the distribution of property to the heirs by intestate succession.
- If an individual dies leaving a spouse and children, who are also the children of the surviving spouse, the spouse receives the entire estate.
- If an individual dies leaving a spouse and children who are not also the children of that spouse, the spouse receives the first 25 percent (not less than the first $50,000 nor more than $200,000.) plus one-half of the balance. The rest goes to the children.
- If an individual dies leaving children but no spouse, the children receive the entire estate divided equally among them. If there are grandchildren, they take their deceased parent’s share by representation. If all the children are deceased, then the grandchildren share equally in the estate.
- If an individual dies leaving a spouse, mother and father, but no children, the spouse receives the first 25 percent (not less than the first $50,000 nor more than $200,000 ) plus three-quarter of the balance. The rest goes to the parents.
- If an individual dies leaving no spouse and no children and that individual’s parents survive, the parents inherit the entire estate. If no parent survives, brothers and sisters receive equal amounts of the entire estate.
If the estate does not exceed $20,000 and there is a surviving spouse, an Affidavit of Surviving Spouse may be issued by the Surrogate. An affidavit allows a husband or wife to dispose of the property. If there is no surviving spouse and the property does not exceed $10,000, a close relative can be issued an affidavit to handle the disposition.
If the estate exceeds $20,000/$10,000 an administrator will be appointed by the Surrogate. Before an administrator can be appointed, all other next of kin of the decedent must renounce their right to be the administrator. A surety bond is also required. The Surrogate will issue a “Letter of Administration” giving the administrator the necessary authority to transfer property, withdraw money from the bank accounts, pay outstanding bills and handle the other affairs of the estate.
To challenge the appointment of an executor or administrator, a caveat must be filed prior to their appointment, with the Surrogate to temporarily prevent the probation of a will or granting of administration.
The appointment of an administrator often takes time, especially if there are challenges to the appointment which must be addressed, or if a search for distant relatives must be performed. During that period, final pay checks can be withheld and bank accounts that were not jointly held can be frozen.
Finally, if there are no next of kin, the property will revert (escheat) to the State of New Jersey.