The Importance of a Will
A Message From Surrogate Susan J. Hoffman
The most sensible, practical, and surest way we can protect those who depend on us is by making a will.
I have assembled this information so the public understands of the advantage of preparing a will
Wills should be reviewed on a regular basis as your situation in life changes such as children, moving to another state, grandchildren, remarriage, purchase of real property, etc. State and Federal laws also change constantly which could mean a revision in your will. Remember: an investment in a properly drawn will could save your heirs additional transfer inheritance taxes and income taxes at the time of your death.
The Will Defined
Before proceeding further, let's define the will. It is a legal declaration of a person's intention concerning what shall be done following the death, as to the disposition of the property and the administration of the estate. Three characteristics of a will set it apart from other forms of property transfer.
- A will is revocable during life - you can change your mind.
- A will is inoperative until death - it's provisions don't take effect until that time.
- A will only applies to the situation that exists at death - as to the extent of your property holdings and beneficiaries.
There are well-defined legal requirements regarding wills that relate to such matters as the capacity to make a will, execution, restrictions upon the disposal of property by will, and revocation. These requirements, which are beyond the scope of this discussion, are a direct concern you should present to your lawyer.
The Importance of a Will
Do you have a will? If not, you've probably given some thought to it. You know it's a good idea to make a will, but one thing or another keeps coming up and you put off doing something about it. It's a subject you really don't feel like thinking about - somehow, executing a will seems to make "the day of reckoning" a little closer.
Unfortunately, many people do not execute wills for two reasons - procrastination and antipathy to thoughts of death. Another reason for dying in testate (without a will) is that most individuals don't have a clear idea as to the law. They realize that if they die without will, their assets will be distributed to their family. But what they don't understand is that the plan of distribution may not be in accordance with their wishes. In fact, it's a good bet that it won't be as they would have desired.
Steps in Preparing Your Will
A will that is to be successfully probated and made to meet your needs and wishes, must first be thought out carefully by you. Although you can prepare your own will, an attorney can help fulfill your intentions and guide you in making the best decisions. Be sure to discuss fees with the attorney so there is no misunderstanding at a later time.
Remember, your will can be changed at any time you wish, as your assets, intentions or desired beneficiaries may change. Your will is not made public while you are alive, since the will is not presented for probate nor recorded before your death. The existence of a will does not affect your right to dispose of your property during your lifetime.
Firstly, start by making a list of all your assets. It is important to list how each asset is owned - individually, jointly, in trust, etc. - since this will determine whether or not the disposition of the property will be governed by the will, or by operation of law. Joint property with right of survivorship, real property and motor vehicles in the name of husband and wife pass automatically to the survivor.
Secondly, examine the beneficiary designations in all life insurance policies, IRA, pension plans and similar documents. They will not become part of your estate and therefore, be sure you have not included their value to cover any expenses.
IMPORTANT: If you name a minor as a beneficiary of an asset or in your will, the minor will require the appointment of a guardian on their behalf. Normally, that money is then deposited in the Surrogate Court Intermingled Account and held until the minor reaches the age of 18 years.
Thirdly, select an executor to administer the will. It is the executor's duty to collect all the assets of the estate, determine what claims are being made against the estate, file the necessary tax returns and distribute the assets among the beneficiaries under the will. The executor may be a beneficiary under the will, a member of your family, your legal or financial advisor, a friend, a bank, trust department or business associate. It is also advisable to name a contingent executor to act in case your first selection dies before you, or, for any reason, is unable to serve as executor.
If the will is complex, you may need to appoint a trustee and/or guardian for some of the beneficiaries. A financial institution may be the right trustee to appoint in this situation to handle the many complex tax, accounting, investment and property management decisions.
Executing Your Will
To be effective, a will must be written, signed by the testator and witnessed by at least two people, or the signature and material provisions are in his/her handwriting. The latter is not recommended because these wills, referred to as holographic wills, cannot be probated in the Surrogate's Court but must be presented to the Superior Court.
Each witness must personally witness the signing of the will. Witnesses do not have to read the will or know it's contents. However, they must be told by the testator that it is his will, and that he wants them to be witnesses to its execution.
While the law permits a beneficiary to witness a will, it is recommended that a beneficiary-witness be used only when a disinterested party is not available. In this way, possible future challenges may be avoided.
IMPORTANT: A will should have specific attestation wording and formatting, including two witnesses and a notary or attorney, to be considered "self-proven." This relieves the witnesses from appearing in the Surrogate's Court to prove their signature at the time of probate.
Safeguarding Your Will
The will should be kept in a secure place such as safe deposit box or fire proof strong box. But more importantly, your executor should know where it can be found. It is a good idea to give a copy of the will to your executor with a notation where the original will can be located.
If it is kept in a safe deposit box it can be removed by the executor immediately following your death in the presence of an employee of the bank upon proof that you are the proposed executor named in the will.
Keeping Your Will up to Date
A will should be periodically reviewed and kept current. Keeping it current is just as important as making one in the first place. Certain changes in your life, such as marriage, birth of a child, purchase or sale of property, change in your financial status, or changes in various tax laws may warrant your making certain important revisions in your will. Also, laws change from state to state (and country to country) so the will should be updated to take the local laws into account.
How to Change Your Will
There are two ways to change your will: prepare a new one or prepare a codicil. If there are many changes to make, it may be less confusing to the executor to prepare a new will. If you have only minor additions or deletions, a codicil, executed in the same formality as a will, would be sufficient. Changing your will by drawing lines through items, erasing, writing over or adding notations is improper and may destroy it as a legal document.
Letter of Last Instruction
Few persons expect to die when they do, and therefore, relatively few leave their affairs in perfect order. Those who administer an estate and take care of what is left often find themselves without necessary information. To facilitate their job, it is advisable to give your personal representative or your attorney a letter of last instruction which is separate and apart from your will. This letter should contain the following:
- Name and address of those to be notified at death and relationships of family members.
- Instruction as to burial and funeral including any prepayments of funeral expenses.
- Location of birth, baptismal and marriage certificates as well as social security card, citizenship papers, armed forces discharge papers and titles to automobiles.
- Location of safe deposit box and where keys are kept.
- List of insurance policies and where they can be found.
- List of stocks, bonds, securities, savings accounts, credit union accounts, etc.
- IMPORTANT: Logins and passwords for online accounts, investments, etc.
- Statement of all real property owned by you with location of deeds, mortgages, abstracts and insurance policies for real property.
- Location of income tax returns for previous five years.
- Receipted bills and cancelled checks for previous five years.
- List of any gifts made and information needed for estate tax.
When a person dies leaving assets in his name alone or in joint names with another person other than a spouse, it will be necessary to present the will to the Surrogate for probate. The will is presented to the Surrogate in the county wherein the decedent resided at the time of death.
The executor will need to present the original will, certified copy of death certificate and a list of names and addresses of the closest next of kin to the Surrogate. Papers are prepared by the court and signed by the executor. The legal review of the documents by the surrogate is the probate of the will. If all requirements are met, the will is admitted to probate and certificates are issued to the executor. These certificates allow the executor to execute documents formerly done by the decedent such as transfer automobiles, bank accounts, investment accounts, etc.
The original will is retained by the Surrogate and filed and recorded in the Surrogate's Court. The will becomes a public record and is listed in the general index.
If You Die Without a Will - Who Gets What
The intestate share of decedent's surviving spouse or domestic partner is:
- The entire intestate estate if:
- No descendant or parent of the decedent survives the decedent; or
- All of the decedent's surviving descendants are also descendants of the surviving spouse or domestic partner and there is no other descendant of the surviving spouse or domestic partner who survives the decedent;
- The first 25% of the intestate estate, but not less than $50,000 nor more than $200,000, plus three-fourths of any balance of the intestate estate, if no descendant of the decedent survives the decedent, but a parent of the decedent survives the decedent
- The first 25% of the intestate estate, but not less than $50,000 nor more than $200,000 plus one-half of the balance of the intestate estate:
- If all of the decedent's surviving descendants are also descendants of the surviving spouse or domestic partner and the surviving spouse or domestic partner has one or more surviving descendants who are not descendants of the decedent; or
- If one or more of the decedent's surviving descendants is not a descendant of the surviving spouse or domestic partner.
Any part of the intestate estate not passing to the decedent's surviving spouse or domestic partner or the entire intestate estate if there is no surviving spouse or domestic partner passes in the following order to the individuals designated below who survive the decedent:
- To the decedent's descendants by representation;
- If there are no surviving descendants, to the decedent's parents equally if both survive, or to the surviving parent;
- If there is no surviving descendants or parent, to the descendants of the decedent's parents or either of them by representation;
- If there is no surviving descendant, parent, or descendant of a parent, but the decedent is survived by one or more grandparents:
- Half of the estate passes to the decedent's paternal grandparents equally if both survive, or to the surviving paternal grandparent, or to the descendants of the decedent's paternal grandparents or either of them if both are deceased, the descendants taking by representation; and the other half passes to the decedent's maternal relatives in the same manner, but if there is none the entire estate passes to the decedent's relatives on the other side in the same manner as the half.
- If there is no surviving descendant, parent, descendant of a parent, or grandparent, but the decedent is survived by one or more descendants of grandparents, the descendants take equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take by representation.
- If there are no surviving descendants of grandparents, then the decedent's step-children or their descendants by representation.
- Administrator: (also known as Personal Representative) Person or institution appointed by the court to manage and distribute the estate of a person who dies without a will.
- Beneficiary: Person named to receive property or benefits.
- Codicil: An addition or supplement made to change or add provisions to a will.
- Contingent beneficiary: Receiver of property or benefits if first-named beneficiary dies before receiving all benefits.
- Contract: Legal enforceable agreement.
- Decedent: A deceased person.
- Devise: To give (or a gift of) property.
- Estate: Everything a person owns.
- Executor: (also known as Personal Representative) A person or institution named in the will to carry out the provisions and directions of the will.
- Heirs: Those persons who are legally entitled to receive a decedent's property.
- Issue: Children, grandchildren, great grandchildren, etc. (lineal descendants)
- Intestate: A person who dies without making a valid will.
- Legatee: A person who receives personal property under a will.
- Levy: To collect by assessment.
- Lien: A charge upon property, real or personal, for the satisfaction of a debt.
- Personal property: Intangible property such as stocks, bonds, or bank accounts and tangible property such as furniture, automobiles and jewelry.
- Probate: Official proof of the genuineness of a will.
- Real property: Land and buildings.
- Surrogate: A judicial officer who has jurisdiction over the probate of wills.
- Tenants in common: Two or more persons owning individual interests in property.
- Testator: The person who makes a will.
- Trust: Property owned and managed by one person for the benefit of another person.
- Trustee: Person or institution holding property in trust.
- Waiver: A legal instrument relinquishing a right or lien.
- Will: A legal declaration of the manner in which a person wishes his estate divided after death.
- Witness: Person who observes the signing of a will and also attests to the signatures.
- What is a will and do I need one?
A will is a legally enforceable written document directing which assets go to whom. If you want to choose how your assets are distributed and who your personal representative is, then yes, you need a will.
- Can a will save money?
Yes, a will can eliminate the requirement of a bond which will reduce administrative expenses and it could permit your estate to take advantage of tax savings.
- Can I prepare my own will?
Yes, but without professional guidance and advice, it may not be legally sufficient to be admitted to probate. In addition, self-prepared handwritten "holographic" wills can only be admitted to probate after a formal Superior Court hearing, which takes time and money.
- Can I name more than one executor?
Yes, you can name two or more executors to serve at the same time. However, the parties must work in concert with one another. Some banks do not recognize co-executors. Keep this in mind, especially if potential co-executors live in separate areas.
You can name one executor and then alternate executors should the first-named executor not want to serve or pass away.
- What effect does a will have on real estate owned jointly by husband and wife?
Real estate owned jointly by husband and wife in the form of ownership legally known as "tenancy by the entirety" is not controlled by the will of the spouse who dies first. Absolute ownership of the property will pass to the surviving spouse who has rights of survivorship, regardless of what the will may provide.
- What effect does a will have on joint bank accounts or certificates of deposit?
Accounts held jointly may be owned with right of survivorship and if you want the account to pass outside the estate when one owner dies, make sure you set the account up that way.
- Can I leave assets to a minor?
If assets are left to minor children and no custodial account or trust was established to manage that property, the Surrogate's Court will need to appoint a property guardian to manage that property until a child turns eighteen. Funds will be held in a trust fund by the Court.
- What effect does a divorce have on a will?
A divorce operates as a revocation of any bequest made to your former spouse or any appointment of your former spouse as executor, but in all other respects, the will is still effective.
- What does it mean for a will to be self-proving? What happens if the will is not self-proving?
What does it mean for a will to be self-proving?
For a will to be considered self-proving, it must contain specific wording related to and including two witnesses and a notary.
Pursuant to Statute 3B:3-4 "Making will self-proved at time of execution", a will may be simultaneously executed, attested, and made self-proved, by acknowledgment thereof by the testator and affidavits of the witnesses, each made before an officer authorized pursuant to R.S.46:14-6.1 to take acknowledgments and proofs of instruments entitled to be recorded under the laws of this State, in substantially the following form:
I, .........., the testator, sign my name to this instrument this .... day of ......., 20..., and being duly sworn, do hereby declare to the undersigned authority that I sign and execute this instrument as my last will and that I sign it willingly (or willingly direct another to sign for me), that I execute it as my free and voluntary act for the purposes therein expressed, and that I am 18 years of age or older, of sound mind, and under no constraint or undue influence.
We,............., the witnesses, sign our names to this instrument, and, being duly sworn, do hereby declare to the undersigned authority that the testator signs and executes this instrument as the testator's last will and that the testator signs it willingly (or willingly directs another to sign for him), and that each of us, in the presence and hearing of the testator, hereby signs this will as witness to the testator's signing, and that to the best of our knowledge the testator is 18 years of age or older, of sound mind, and under no constraint or undue influence.
The State of................
Subscribed, sworn to and acknowledged before me by ................, the testator and subscribed and sworn to before me by ............ and ............., witnesses, this ............. day of.................
(Signed)............................. (Notary / Attorney) with stamp/seal
What happens if the will is NOT self-proving?
If the proper wording is present with the signatures of the testator and of two witnesses, but the will has not been notarized OR the notary paragraph is lacking/contains errors OR one of the witnesses has also acted as the notary, the executor would need to find and contact one of the witnesses and ask them to visit the Surrogate's Court to sign a proof.
If the will has been properly notarized, but is lacking the proper attestation wording by the witnesses, then both witnesses may need to sign proofs.
This can sound confusing, but we can help. Please contact the Surrogate's Court for assistance on this process at 908-788-1156.
- Who becomes the guardian of orphaned minors if there is no will?
Application is made to the Surrogate who usually appoints a person from among the next of kin of the minor.
- If there is no will, then who gets what?
If someone dies with: Here's who gets what: descendants, but no spouse children inherit everything; if any children are deceased, then their children (decedent's grandchildren) inherit their deceased parent's share spouse, but no descendants or parents spouse inherits everything spouse and descendants only shared with that spouse spouse inherits everything spouse and children from someone other than spouse spouse inherits the first 25% of intestate property (but not less than $50,000 or more than $200,000), plus 1/2 of the balance; children of decedent share remaining balance of the estate; if any children are deceased, then their children (decedent's grandchildren) inherit their deceased parent's share spouse and descendants shared with spouse,
but your spouse also has descendants with someone else
spouse inherits the first 25% of intestate property (but not less than $50,000 or more than $200,000), plus 1/2 of the balance; decedent's children inherit everything else; stepchildren do not inherit spouse and parents (no descendants) spouse inherits the first 25% of intestate property (but not less than $50,000 or more than $200,000), plus 3/4 of the balance; parents inherit remaining remainder parents but no spouse or descendants parents inherit everything; if no parents survive, siblings of decedent inherit equally; if any siblings are deceased, then their children (decedent's nieces/nephews) inherit their deceased parent's share siblings, but no spouse, descendants , or parents siblings inherit everything; if any siblings are deceased, then their children (decedent's nieces/nephews) inherit their deceased parent's share
Descendants are children, grandchildren, great grandchildren, etc.
- Do all states have the same probate laws?
No, although New Jersey is one of several states to enact the Uniform Probate Code, most states have their own probate laws. It is a good idea to have your will reviewed when you move to another state.