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In a will you are able to decide to whom, when, and in what amounts your assets should go. You select your executor or personal representative, the one who shall be responsible for the disposition of the estate. By having a will, you may avoid a forced sale of your property, or costly and tedious applications to the courts for the right to sell it. You have greater assurance that your plans will be carried out as you desire.
Meanwhile, if you die without a will then your estate must be distributed according to New Jersey intestacy laws. These provisions are very general and are not flexible. Moreover, the intestacy laws will direct who shall administer your estate, among whom, and how it shall be divided. If you do not name an executor then your estate most likely will not be distributed as you wish. Finally, if you die without a will, then you will lose the right to name a guardian for your minor children. This is of vital importance, especially if your spouse should not survive you.
It is important to emphasize that wills are not do‑it‑yourself projects. Don’t try to save a few bucks and prepare your will from a Staples kit or from some type of internet company. There are plenty of affordable attorneys in New Jersey who can draft you a quality estate plan for an affordable fee. Although many wills are prepared without any legal assistance, the risk is too great. One minor mistake could invalidate your entire will.
2. What are the steps in preparing a will?
A will is a document that will stand up in court, and it must be tailor‑made to satisfy the needs of your family. Therefore, a will must be carefully thought out by you. The will should be prepared by an attorney who specializes in will drafting or estate planning. Theodore Sliwinski, Esq. has prepared thousands of wills. He has prepared wills for small estates to multimillion dollar estates. He prides himself on providing quality legal services at affordable rates. Having a will prepared does not have to cost you a fortune. Mr. Sliwinski, Esq. believes that everyone should be able to afford to have a will prepared at a reasonable rate.
3. What are the legal requirements of a valid will? Do I need a lawyer to make my will?
Any adult who is of sound mind is legally entitled to make a will. There are only a few legal requirements that a valid will must satisfy:
a. The will must be signed by at least two witnesses. The witnesses must watch you sign the will. The witnesses don’t need to read it. Your witnesses, must be people who won’t inherit anything under the will.
b. If your will is self-proven, you and your witnesses must sign an affidavit (sworn statement) before a Notary Public. In New Jersey a lawyer is also considered to be a notary public. A self-proven will can help simplify the Probate Court procedures required to admit a will to probate.
c. You do not have to record or file your will with any government agency. You should keep your will in a safe, accessible place and be sure the person in charge of winding up your affairs (your executor) knows where it is.
4. What some important considerations that I need to know when I make a will?
a. You don’t need to make an itemized statement of your assets, nor do you need to state the disposition of your property item by item.
b. You can change your will at anytime you wish, as your assets, beneficiaries or desires change.
c. Your will is not recorded before death; no one needs know of it if that is your wish.
d. The existence of the will does not affect your ability to sell or dispose of property. You may continue as though you had not written the document.
e. Even though New Jersey permits a beneficiary to witness a will, it is recommended that a beneficiary witness should never be used, in order to avoid future challenges as to conflict.
f. Start your estate planning by making a list of everything you own and owe. This statement will show exactly where you stand financially. Thereafter, you must decide to whom you will leave your real and personal property.
5. Who should I choose as an executor?
The selection of an executor to administer the will is an extremely important decision. This decision should be given a lot of thought before it is made. Your executor could be a beneficiary of your estate, a member of the family, your legal or financial advisor, your accountant, your family lawyer, or a trusted friend or a business associate. Your will also should name an alternate executor in case your first selection dies before you, or is unable to serve.
The person you choose should be honest, organized, and good at communicating with people. If possible, name someone who lives in New Jersey and who is familiar with your financial matters; that will make it easier to do chores like collecting mail and finding important records and papers.
If the estate is very large and complicated, then it might be advisable to choose a bank or a financial institution to be the executor. Moreover, if the family members simply have a history of constant fighting, then it is very advisable to choose a bank as an executor. A bank is experienced and familiar with accounting and management details. It is financially responsible and a continuing institution. An individual may die, but a bank has continued life. The drawbacks about choosing a bank as an executor is that their fees may be very high. Banks now charge fees for absolutely anything. The amount of executor fees that a bank could charge could be very high.
In selecting your executor the choice should be business like and not sentimental. Your executor as the important responsibility of settling your estate and seeing that the wishes expressed are faithfully carried out. I advise my clients to choose an executor who is honest and who can handle filling out paper work. The main role of an executor is basically to fill out a significant amount of paper work. In my experience the executors who have a “knack” in filling out paperwork, most often are excellent executors. They perform their duties correctly and in a prompt manner. Alternatively, the executors who have difficulty filling out the paperwork often turn the probate process into a mess and a disaster.
6. Can I name more than one executor?
Yes, you can name two or more executors to serve at the same time. However, this is often a terrible idea. Both executors will be required to sign all of the estate checks and sign and any and all of the legal documents. This requirement can significantly slow down the probate process, thereby aggravating any anxious heirs who “want their money now.” I always advise a client to only choose one executor. If multiple executors are chosen, then more often than not this only leads to additional disputes amongst the heirs, and the probate process is drastically slowed down.
7. What are the duties and responsibilities of an executor?
An executor has many duties and responsibilities. The more complex and larger the estate then the more responsibilities the executor will have. Here are a few of the tasks that an executor may be required to do;
a. Offer the will for probate at the local county surrogate.
b. Qualify as executor, and obtain a certificate of authority.
c. Obtain a bond for the estate. A bond is essentially an insurance policy for the estate. A bond provides insurance for all of the heirs in the unfortunate event that the executor or another heir should dissipate the estate.
d. Locate and take possession of all property.
e. Try to collect all of the debts owed to the decedent or the estate.
f. Try to settle and pay all of the debts that the estate may owe. Discover and assert all rights, and line up claims owed by the estate.
e. Prepare and file an inventory of all property and interest of any kind belonging to the estate, listing the appraised value.
Review all assets, liquidating those of doubtful character.
f. Advertise for claims and pay them in the order cited by law.
g. Sell any real estate that was owned by the decedent.
h. Figure out and pay all outstanding taxes.
i. Pay any gifts under the will.
j. Distribute the estate.
k. Prepare a final accounting for the estate to the court, if required.
8. How is the will formally executed?
A will must be written, signed by the testator who is the maker of the will, and it must also be witnessed. The original copy is the legal document and must be signed.
In New Jersey, a will must have at least two witnesses to be admitted to probate at the Surrogate’s Court. The testator and the witnesses are required to be present at the signing, and each must see the others sign. The witnesses do not have to read it or know what it contains. However, they must be told by the testator that it is his will, and asked to sign as witnesses.
It is imperative that a will must be self-proven. This basically means that the lawyer also notarizes the will. If a will is only witnessed by two people, and if it is not self-proven, then it could ultimately be very difficult to submit the will for probate.
9. Why is it important to have a self-proven will?
If the witnesses and the testator execute an affidavit before a Notary Public, then it will not be necessary for either of the witnesses to appear in County Surrogate when the will is admitted to probate. In New Jersey all lawyers are also considered to be a Notary Publics. Many of older wills that date back before the 1990′s are not self-proven. It may be impossible to admit these wills to probate if the witnesses can’t be located. Therefore, it is imperative that any old wills that are not self-proven should be revised and redone. If an old will can’t be admitted to probate then it could ultimately cost additional thousands of dollars of extra legal fees. Therefore, any old wills should be updated.
10. Why is it important to have a common disaster clause in a will?
A well‑drawn will should contain a common disaster clause. A common disaster clause establishes alternate beneficiaries if both husband and wife dies within a stated period of time. Without a clause, if both a husband and wife die with no way to determine who died first, then their individual property is disposed of as if they had a widow and widower. In summary, the goals of an estate plan can be severely thwarted if the parties do not have a common disaster clause. Your estate could eventually be distributed to people to whom you never could have imagined would inherit your hard earned money.
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