Written By:Scott Glatstian
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At some point in every person’s life, there will be a moment where they are forced to contemplate their own death. Whether it’s the loss of a would-be heir, a new health diagnosis, or something happier like a new baby – a day will come in everyone’s life when they ask themselves a question similar to this one:
What would happen to my loved ones and assets if I were to die?
This is an uncomfortable question to think about, but a very necessary one. The only way to adequately prepare for the unexpected in life is to create an estate plan that lays out one’s wishes for how to handle their affairs should the need ever arise.
How is this done? There are several elements to a proper estate plan, but the starting point for most people will be to create a last will and testament, or “last will.” This document will detail how one’s assets are to be distributed upon their passing, as well as several other important things that need to be figured out prior to one’s death. Read on to learn more about what a last will is, what it should include, and how to create one that is legally valid in New Jersey.
What Is a Last Will?
A last will is a legally binding document that an individual creates and signs prior to their death. It lays out their instructions on how to handle their affairs once they pass away. In the absence of this document, a person’s estate will go through the intestacy process, which may have several unintended consequences.
The last will is about more than just naming beneficiaries for one’s assets; it will also allow a person to:
- Name guardians for minor children
- Choose an executor to manage their estate
- Choose trustees to manage finances for certain individuals
- Describe any religious practices or rules that should be followed
Every last will should include these things, but in certain circumstances the person creating the will may need to include other items based on their unique situation, such as:
- Setting up a trust to care for their pets
- Choosing charities to donate certain property to upon their passing
- Making sure that children from a previous marriage will receive an inheritance
When creating a last will, it’s important to gather all the information related to a person’s estate and pay attention to any areas where their individual circumstances may cause issues for surviving family members or require further planning. For example, the following situations could give rise to unexpected problems and should be considered prior to the creation of a will:
- The estate is large and may be subject to significant taxes
- The estate contains several assets located outside of New Jersey that will need to go through the probate process in the state where the assets are held
- The creator of the last will has lived in a community property state in the past or has a current property settlement agreement stemming from a previous marriage
Last wills are unique to the person creating them and their finances and family situation. As such, there are likely going to be additional factors that need to be considered before the last will is drafted. The best way to be sure that all of one’s bases are covered and that their last will is not going to cause future issues for them or their family is to speak with an experienced attorney who can review and spot these potential concerns ahead of time and plan accordingly.
Naming Fiduciaries in the Last Will
In addition to naming beneficiaries, or those who will receive one’s assets in the last will, it’s also important to name certain fiduciaries. Fiduciaries in a last will are people who will be responsible for ensuring that various elements of the will are followed in accordance with the will maker’s wishes. Let’s review the three fiduciaries that every last will should name:
First, it’s important to name an executor. This will be the person who is responsible for administering the estate upon the will maker’s passing. They will gather the assets in the estate and distribute them based on how the last will is written.
Being an executor can sometimes require a lot of effort, and the state has declared that executors are entitled to a commission based upon the size of the estate. The executor is not required to take this commission, and oftentimes when the executor is a family member of the deceased, they will opt out of taking any pay to avoid squabbles with other family members.
The executor is an extremely important job when it comes to making sure that the distribution of the estate goes smoothly. As such, it’s best to name someone who is organized, available, and willing to do the job when the time comes. At least one backup should be named as well, just in case the named executor is not available at the time of the will maker’s death.
As mentioned above, the last will is the only place a person can name guardians for their minor children in New Jersey. While guardianship proceedings are always handled in court, the court will strongly consider the preferences of the deceased, properly named in their last will, when determining who will become the guardian for minor children.
When choosing a guardian or guardians, it’s important to consider a few things. First, the person must be willing to take on this role. Raising a child is a tremendous responsibility and depending on whether the will maker has set aside any money for their children, it can also be very expensive. For these reasons, it’s important to speak with one’s chosen guardians prior to making the designation in a will, to make sure that they are ready, willing, and able to step in if needed.
Another important but sometimes uncomfortable thing to consider when naming a guardian is the age of the person chosen. If the will maker’s children are very young, it’s foreseeable that the guardian may not have to take on the job for many years. So it’s vital to think about not just who can do the job today, but also who could take on this responsibility at any point between now and when one’s children reach adulthood.
Many times a last will is written in a way that will create a trust to hold assets for minor children should the will maker perish prior to their becoming adults. This is done to ensure that the assets are used responsibly to care for the children, and not squandered or thrown away by someone who doesn’t have a good understanding of how to manage money. Trusts like this can also be made for adults who have money problems, substance abuse issues, or anything else that may give the will maker pause about leaving them large amounts of money.
When there is the potential for a trust to be created upon the death of the will maker, a trustee will need to be named in the last will. This person will take control of the trust holding the will maker’s assets, and distribute the money either according to the instructions provided in the will or otherwise according to the trustee’s best judgment.
Choosing a trustee is similar to choosing an executor or guardian. It should be someone who is ready, willing, and able to do the job. It should also be someone that the will maker has complete trust in, and someone who is responsible with money. As with the other fiduciary choices, at least one backup should be named as well.
Deciding on fiduciaries for one’s estate plan is a crucial part of the process that needs to be carefully considered. Choosing the wrong person for any of these roles can have dire consequences. It’s best to speak with an attorney about one’s assets and family situation prior to naming anyone to these roles, as the attorney will be able to spot any potential issues that may arise from the will maker’s intended choices.
Making the Last Will Valid in New Jersey
Once the last will is created, it needs to be “executed” or signed in accordance with state law. In New Jersey, the law states that the last will must be in writing and signed by two witnesses who can attest to the sound mind of the testator (the person who created the will).
While it’s not a requirement, it’s always best to use “disinterested” witnesses when executing the last will. Disinterested witnesses are people who do not stand to gain anything from the will. If there is ever a situation where the last will is contested at court, using disinterested witnesses will preclude any claim that witnesses were influencing the will maker in an improper manner.
Having the will notarized is also not a requirement in New Jersey, but it is always best to do so. When a notary is present for the signing ceremony, the will becomes “self-proving.” This means that when the will maker passes away and the will is entered into probate, the witnesses themselves will not be required to go to court and affirm that they did, in fact, witness the signing of the will. Given that these documents can often sit for years or even decades before they are needed, the logistics of hunting down witnesses can be difficult, so it’s always best to have a notary present when the will is signed.
Why Hire an Attorney?
Creating a last will and testament in New Jersey can sometimes be a complicated process, and always requires careful consideration by the person making the will. There are many ways to create a last will, but only working with a qualified attorney will ensure that the will covers everything, is legally valid, and won’t give rise to any future issues for its creator or their family.
At Rosenblum Law, our experienced attorneys will work with you step-by-step to draft a final will that will prepare you and your family for the future, whatever it may be. Our wills can be created on an affordable flat-fee basis, and require just a few hours of your time to complete. Call us now to get the process underway with a free consultation.
How to Cite Rosenblum Law’s Article
Scott Glatstian (Sep 8, 2022). Creating a Will in New Jersey. Rosenblum Law Firm, https://rosenblumlaw.com/estate-planning/nj/creating-will/
Scott Glatstian "Creating a Will in New Jersey". Rosenblum Law Firm, Sep 8, 2022. https://rosenblumlaw.com/estate-planning/nj/creating-will/