NJ Wills Attorney

 
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A properly written NJ will can be a tremendous tool to help your family and loved ones from the many complications, problems and costs associated with estate administration.

If you need advice on a NJ Last Will & Testament and its use in estate planning and asset protection, including also trusts, estates, probate, succession planning, etc. and want to talk to an experienced, sensitive and easily-approachable attorney, then call Fredrick P. Niemann toll-free at (855) 376-5291 or e-mail him at fniemann@hnlawfirm.com.  He warmly welcomes your inquiries.
 

THE BASICS OF A NJ LAST WILL & TESTAMENT
 

INTRODUCTION TO A NEW JERSEY WILL:
THE BASICS YOU NEED TO KNOW

A will is a document which directs how your property is to be distributed upon your death and provides for the people you love and care for when you are gone.  A will creates a fiduciary relationship between your executor and beneficiaries in which property is held for the benefit of one (or more) person(s). The person creating the will is generally called a testator, or grantor.

The testator typically executes a written document which upon death authorizes the transfer of property to a person called an executor or executrix.  The executor is responsible for administering the terms of the will. The person for whose benefit the will is administered is called a beneficiary. The property held in the estate is often called estate property.

New Jersey statutes and case law controls the creation, operation, and termination of a will.  The will can generally be written any way you want it except to the extent that a term is illegal or against public policy.  Generally, where a will fails to address an issue, New Jersey law must be examined.

A Last Will & Testament may provide for management of property, accumulation or distribution of income to beneficiaries, distributions of property to beneficiaries, withdrawal powers in beneficiaries, and other powers of appointment.

In addition, there are many income, estate, and generation-skipping transfer tax implications to be considered when creating wills.  An experienced NJ will and trust attorney is extremely valuable. 

A trust created within a Last Will & Testament which comes to life when a person dies is called a testamentary trust and is subject to probate at the grantor's death. On the other hand, trusts, created during lifetime (inter vivos trusts) are generally not subject to probate.

A person must have the legal capacity to create a will in New Jersey.  Capacity refers generally to the person being of sound mind and legal age when he or she creates and/or signs their Last Will & Testament document.

A will may be void or voidable if the maker lacks capacity at the time the will is created. If you have children, a will should designate who will become their legal guardian if you and your spouse both die.  In the absence of a designated guardian, your children are subject to a lengthy and potentially damaging custody and guardianship battle between well-meaning and loving family members, each of who believe he or she is best suited to be your children’s guardian and to raise them as you would have.  Note that the legal age of emancipation in NJ is 18 or 21 depending upon several scenarios.  A guardian is legally responsible for the health, education, maintenance and welfare of your children.  They serve as your child’s legal decision maker until they become an adult.  Financial support for the needs of your child should be addressed in a support trust under your will.  There are many forms of support suitable for children.  See the pages titled:

All three pages are located within this site.  You can also visit www.njtrustattorney.com (click here).  You will find these sites to be extremely informative. 

As a father of four sons, I can help you address many of the concerns I had when selecting a guardian(s) for my children.  You can reach me, Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email me at fniemann@hnlawfirm.com.

RESPONSIBILITIES OF AN EXECUTOR UNDER A NEW JERSEY WILL

A will must have an executor of legal capacity. Capacity refers generally to the executor being of sound mind and legal age.

The executor receives legal custody to the property held in the estate and is responsible for administering the terms of the will for the benefit of the beneficiaries of the will. The will should identify who the executor is and provide for successor executors in case the executor is unable to serve. The will can specifically provide a mechanism for selection or replacement of an executor.

A will may have more than one executor. Where there is more than one executor often called co-executors, the will can specify whether a majority or all of the trustees must agree on decisions to be made.

There are two general types of executors: individual executors and corporate. Any combination of individual and corporate executors can be used, but should be carefully considered.

Individual executors generally include family members or friends.

Corporate executors include trust companies and banks and other financial institutions with trust services. Corporate executors are usually chosen for their expertise with estate administration and because a corporate executor will (hopefully) always be there. Corporate executors charge for their services, often based upon the amount of estate assets.

The attorneys with Fredrick P. Niemann, Esq. have prepared trusts, wills, health care directives (living wills), powers of attorney and numerous other estate/family and business planning documents for individuals and families like yours for over 30 years.

DEFINITION OF A WILL

The property transferred pursuant to the terms of the will is known as a bequest.  Ordinarily a will distributes property according to the instructions of a deceased person.  This differs from the laws of intestacy, that is, the laws of New Jersey that determine how a decedent’s property is distributed where there is no will.

Though written during the lifetime of the maker, the will is testamentary by nature; in other words, it takes effect only upon the death of the maker.  Therefore, it is a changeable document, one that can be amended, altered, or revoked a number of times prior to the maker’s death.  Many wills are revised by the use of a codicil, a written instrument that must be executed according to the same formalities of the original will.  If it is revoked prior to the maker’s death, and another valid will is not executed to take the place of the prior will, the decedent’s property will be transferred according to the laws of intestate succession as adopted in New Jersey.

However, a codicil is a more convenient method of revising a will, since it can be used to make changes in a will.  A codicil is a relatively simple document only one or two pages in length, and are not as costly as having the entire will revised.  For these reasons, codicils are frequently used to make changes in a will at a reduced cost.

Last Will and Testament

A will can and should be revised if any of the following situations occurs:

1.     Changes in your family situation (marriage, divorce, birth or death of individuals, adoptions, etc.)

2.     Changes in your business situation (the sale or acquisition of an asset, an increase or decrease in the value of a business asset or closely held business)

3.     Changes in the tax laws that could result in significant estate tax savings if implemented; or, conversely, detrimental estate tax liability that could result if the provisions of the will are not amended

A will can be revoked, according to New Jersey.  There are a number of means by which a will can be revoked, but not all states recognize all the means by which a will can be revoked. Therefore, it is advisable to consult with a New Jersey will attorney to see how a will revocation is permitted in New Jersey.

The most frequent means of revoking a will are the following:

1.     Revocation of a NJ will by cancellation:  This involves a formal revocation of a prior will, and is usually a signed, witnessed statement.  Frequently, the cancellation of a preexisting will occurs in a written instrument, which contains an express statement that all previous wills executed are cancelled and revoked at the time the statement of cancellation is validly executed.

2.     Revocation of a NJ will by destruction:  This involves the tearing, burning, or obliteration of a will by its maker.  The destruction must be accompanied by an intention by the maker to have all the will revoked.  If intention to revoke the will cannot be proved, then the will is still deemed to be a valid instrument.  Thus, in cases of individuals who have had their wills destroyed without an intention to revoke the will (e.g., floods, natural disasters, house fires, etc.), the will is assumed to be a valid, binding instrument even if it has been destroyed.  In cases like this, the court will attempt to follow the provisions of the will if the contents of the will can be proven from another source (e.g., an unsigned copy of the will kept by the attorney).

3.     Revocation of a NJ will by execution of a subsequent will:  This is perhaps the most frequently used method of cancelling a prior will.  In most circumstances, this involves a formal declaration or statement in the subsequent will that all prior wills and codicils are revoked as of the date the subsequent will is validly executed.  It is important for an individual to revoke any and all prior wills on the subsequent execution of another will, since a person may only have one validly executed will.  If neither will is dated so that it cannot be determined which will supersedes the other, neither document will be given legal effect and the estate of the deceased must be distributed according to the laws of New Jersey intestacy. 

WHAT PROVISIONS SHOULD YOU INCLUDE IN YOUR NJ WILL

Once it is understood that there are certain objectives that can and cannot be accomplished through the use of a Last Will and Testament, a will can be written containing those provisions that accomplish your objectives.  Among the provisions which can be placed in a will are the following:

1.     Gifts of property to specified beneficiaries, including both general gifts (e.g., “all of my household furniture to my daughter, Molly”) and specific bequests (e.g., “my 1988 Buick Skyhawk to my nephew, Jeremy”)

2.     Provisions that allocate payment of New Jersey estate and inheritance taxes to the beneficiaries (e.g., “The payment of all of my estate tax liability is to come from my residuary estate after which any remaining property is to be distributed to my niece, Anne.”)

3.     Provisions that utilize both the estate tax exemption and unified credit and the marital deduction (e.g., “That portion of my estate which equals the New Jersey or federal exemption equivalent in the year of my death shall go to my children in equal shares; the rest of my estate shall go to my surviving spouse, Mary.”)

4.     Provisions that name specified guardians for minor children (e.g., “In the event that both my wife and I are killed, then I hereby name my brother, Randy, to serve as guardian of our minor children.”)

5.     Provisions that provide a presumption of survivorship (e.g., “In the event that it cannot be determined who died first, and we both die in the same disaster or accident, then it shall be presumed that I predeceased my wife.”)

6.     Provisions that name an executor or your estate (“I hereby appoint my sister, Amy, to serve as executrix of my estate and in the event my sister Amy predeceases me, then I hereby name my brother, Christopher, as my executor.”)

7.     Provisions for distribution of a portion of the estate to a qualified charity (e.g., “I hereby bequeath $40,000 to the American Diabetes Association for purposes of research and education.”)

8.     Allocation of the remainder or residue of the estate to prevent partial intestacy (e.g., “I hereby bequeath all the rest, residue, and remainder of my estate to my wife, Edith.”)

9.     Provisions for income distribution to the surviving spouse and other family members (e.g., “In the event of my death, I hereby allocate my income-producing stock portfolio to the XYZ trust, the terms of which direct $1,000 per month shall be distributed to my surviving spouse, and in the event my spouse shall predecease me, then I direct that $1,000 per month shall be distributed to my children until they shall reach the age of maturity.”)

In addition, other specific provisions may be inserted in the will which achieve your specific estate-planning objectives.  Therefore, this list should not be considered an all-inclusive list of will provisions.

For more information, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  He welcomes your calls and inquiries and you’ll find him very approachable and easy to talk to.

Call our office today. Ask for Mr. Niemann to personally discuss your will situation toll-free at (855) 376-5291 or e-mail him at fniemann@hnlawfirm.com.

NJ wills lawyer serving these New Jersey Counties:

Monmouth County, Ocean County, Essex County, Cape May County, Mercer

County, Middlesex County, Bergen County, Morris County, Burlington County,

Union County, Somerset County, Hudson County, Passaic County

NJ Wills Attorney | Wills Lawyer in NJ | Last Will & Testament Attorney in New Jersey | NJ Wills

NJ Estate Planning Lawyer

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NJ Wills Attorney