Will & Estates
No one likes to think about death, but unfortunately, death for is an inevitable event for everyone. Proper planning after one’s death will avoid protect one’s heirs and avoid painful family disputes. In New Jersey, when one dies without a will, he or she is considered dying intestate. When one dies without a will, or intestate, the distribution of his or her assets may be far more complex and contrary to anyone reasonable’s expectations. In a world of blended families, aged parents, and children with special needs, a will becomes far more than an asset distribution directive.
Generally speaking, a will is a legal document that determines what happens to your property after your death. A will states who receives property and in what amounts. Property distributed under the terms of the will become the “probate” estate. Making a will is a responsibility, as well as a right that is protected by law.
In addition to distributing or transferring property, a will may have other functions. It may be used to name a guardian for any minor children or to create a trust and designate a trustee to handle an estate (property left after death) on behalf of children or others. A will may also be used to name a personal representative or “executor” to handle a decedent’s (the person who died) property and affairs from the time of death until an estate is settled.
Planning a Will
A person does not need to have a large estate to plan and prepare a will. Anyone who owns property, whether “personal property,” such as cash, stocks, jewelry or furniture, or “real property,” such as land and/or a house, should prepare a will. If married, each spouse should have a will.
Making a Valid Will
A will should be made when a person is “legally competent” (of sound mind and at least 18 years old). It should be prepared while its maker is in good health and free from emotional stress. In other words, to make a valid will, you must understand such things as what property you own, its value, and whom you are leaving it to when you die.
Dying Without a Will
When there is no valid will, the person is said to have died “intestate.” A court appoints an administrator to handle the decedent’s affairs, and his or her property is then distributed according to a formula fixed by law. The laws for distribution of an intestate estate are rigid and generally do not make accommodations for those in unusual need. After payment of taxes, debts, funeral expenses, and administrative costs, the property goes to the surviving spouse, children and/or relatives. The laws are specific as to how property is to be distributed, including which relatives have priority and how the property is divided.
Valid Will Requirements
Each state has its own laws that determine the requirements for a legal will. In New Jersey:
- The will must be written, dated and signed;
- The person who makes a will (called a “testator”) must be legally competent and acting voluntarily (of sound mind and free of any improper influence), and be at least 18 years old; and
- The signing of the document must be witnessed by at least two legally competent individuals (one of whom may be a notary public) and signed in strict accordance with technical formalities. Witnesses do not need to know the contents of the will and should not be beneficiaries (persons who will receive something) of the will.
Probate
Probate is the legal process by which the affairs of a deceased person are settled and title to his or her property is transferred to the heirs.
Changing or Revoking a Will
A will is effective only at death and may be changed or revoked at any time before death. A will should be revised to reflect any changes in circumstances, personal choices or resources. Changes are often made by a simple document called a codicil (a supplement to a will), or by redrafting the will. An attorney should be consulted when making changes to ensure that changes are legal and properly made.
Updating a Will
A will should be reviewed and updated as conditions and circumstances change. For example, changes may be necessary when:
- The family changes as a result of a birth, adoption, marriage, divorce or death;
- Substantial changes occur in the amount or kind of property owned;
- Tax laws change;
- Residence changes from one state to another;
- The designated executor, guardian or trustee can no longer serve; or
- You decide for any reason to change the distribution of your estate.
Longevity of a Will
A will is valid until legally revoked or changed, and becomes final or effective upon its maker’s death. In the event of a divorce, a will automatically excludes the former spouse unless it expressly states otherwise. Complications could result, however, if no property settlement agreement of the divorce exists. Periodic reviews are important to make sure the will conforms with changing laws as well as the will-maker’s intentions.
Keeping a Will Safe
The signed original document should be kept in a safe place. As with all vital papers, this document should be stored where it is protected (such as a bank’s safe deposit vault), yet readily accessible when needed. In Washington, the safe deposit box of the deceased is not sealed, so someone who has access to the box can get the will. Arrangements should be made for the will to be immediately available to the decedent’s executor.
A copy of the will that notes the location of the original document, and a letter of instruction that contains numbers for bank accounts, insurance policies, credit cards or other financial details, should also be prepared. The letter may also contain instructions regarding burial, cremation or anatomical gifts, and should be given to the executor or will-maker’s attorney. Because this letter may function as a plan for handling important estate matters, it should be as complete as possible.
Costs and Fees
Drafting a will is an important and complex matter that involves the judgment and skills of an attorney. It is a critical process that requires legal knowledge, informed decision-making, and coordination with other estate planning documents.
Although “do-it-yourself” forms and kits are available, they may not consider individual circumstances and relationships, and could cause avoidable litigation, contested wills and other problems in transferring property to heirs. An attorney can assist and advise by analyzing individual circumstances and preferences, drafting valid documents, and avoiding pitfalls that alter intent.
Considering its importance, the cost of making a will is modest. A properly drawn should reduce expenses (and in some cases, taxes), while simplifying the administration of an estate. The cost of the will is usually related to the lawyer’s time spent preparing the documents. In most cases, clients leave Davis, Saperstein & Salomon, P.C.’s offices with the finalized, signed, sealed and delivered document.
Also, as part of this service, the law firm provides powers of attorney and medical directives, commonly referred to as living wills.
The advice of an expert on this complex subject could prove invaluable in preserving the value of the estate and assuring that property is distributed as intended.
Advance planning for the distribution of property, specific bequests (gifts), and the naming of an executor, guardian or trustee can also help save time and money. Therefore, before seeing an attorney, think about your estate planning objectives and make preliminary decisions about the distribution of your property. You can facilitate the process, and control costs, by preparing an inventory of your assets and listing your various bank accounts, stocks and bonds, insurance policies, and any profit-sharing, retirement and pension plans.
For further information and a free consultation contact partner Garry R. Salomon at (201) 907-5000 or email at garry@dsslaw.com
