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The below article has 40 topics. We are posting topics 21-30 today. You can read the entire article on New Jersey Lawyers under Having a Will Prepared Does Not Have to Be Expensive!
21. What are some points to know when making 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 it at any time you wish, as your assets, beneficiaries or desires change.
c. Your will is not recorded before death; no one need 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.
22. How is my estate distributed if I don’t have a will?
If you die without a will, or “intestate,” your assets and estate are divided according to New Jersey’s intestate laws. The Surrogate will determine whether or not an administrator needs to be appointed depending on the size of the estate.
The laws of New Jersey state provide that;
a. If you die leaving a spouse and children, who are also the children of the spouse, the spouse receives 100% of the estate and no bond is required to be posted.
b. If you die leaving spouse and children of a prior marriage, the spouse receives the first 25% (but not less than $50,000 and no more than $200,000) plus ½ of the balance of the estate. The children of the decedent share the remaining balance of the estate. If a child predeceased the parent and that child produced grandchildren, the grandchildren share the balance that would have been their parent share.
c. If you die leaving spouse and no children, but are survived by a parent(s) the spouse receives first 25% (but not less than $50,000. and no more than $200,000.) plus 3/4 of the balance. Surviving parent(s) receive all other assets of the estate.
If you die leaving child or children but no spouse, children will take equally. Grandchildren will take their deceased parent’s share.
d. If you die leaving no spouse or children, parent(s) will take all. If no parent survives, brothers and sisters of decedent will take equally. If a sibling predeceased the decedent then the nieces and nephews will take their deceased parent’s share.
e. If you die leaving a spouse and children and the surviving spouse has children from a previous relationship, the spouse receives the first 25% (but no less than $50,000. and no more than $200,000.) children of the decedent share the remaining balance of the estate. The stepchildren do not share in the estate.
you die leaving a surviving spouse and only step‑children, the surviving spouse receives 100% of the estate.
g. If you die without a surviving spouse who had children from a previous relationship and you have no other descendents, such as parents, siblings, grandparents or other direct descendants, the step‑children share 100% of the estate.
23. What is the interplay between a will and life insurance?
A life insurance policy is a contract between the policyholder and the company. The life insurance proceeds are paid according to the terms of each contract. It is important to emphasize that the proceeds of life insurance pass outside of the will. Therefore, the life insurance contract will determine who receives the proceeds instead of the terms of the will.
Life insurance should be payable specifically to a designated beneficiary. An alternate beneficiary or beneficiaries as well as a primary beneficiary should be named in each life insurance policy. An alternate beneficiary is important in case of simultaneous death of both the policyholder and the beneficiary, or if the beneficiary dies first. If there is no alternate beneficiary named, then the life insurance money passes to the estate. Consequently, these monies are subject to New Jersey inheritance tax and the executor’s or administrator’s commission.
24. What are the type of taxes that can influence your will?
There are three kinds of taxes that can influence the provisions of your will: inheritance, estate and gift. An inheritance by will, by law, by surviving joint owner, or from life insurance is not income and is not subject to income tax.
25. What is the New Jersey inheritance tax?
The inheritance tax is a tax payable by an heir or beneficiary for the right to acquire the property of a deceased person. The tax is determined by the amount inherited and by the relationship of the individual to the deceased.
26. I don’t own much property. Can’t I just make a handwritten will?
No, this is a horrible idea. Handwritten, unwitnessed wills, are called “holographic” wills. It is very uncertain if a holographic will can be admitted to probate. To be valid, a holographic will must be written and signed in the handwriting of the person making the will.
A holographic will is better than nothing if it’s valid in your state. However, a valid will signed in front of witnesses is much better to have. If a holographic will goes before a probate court, then the court may be unusually strict when it examines it to be sure it’s legitimate. Moreover, many holographic wills can be written very ambiguously, and your estate could eventually be distributed to people that you did not want to receive your hard earned savings.
27. Can I use my will to name a guardian for my young children and to manage their property?
Yes. One of the best parts of having a will is that you can name a guardian to care for your young children if you should die. If both parents of a child die or become otherwise unable to care for a minor child, another adult who is called a guardian must step in. The guardian will be responsible for raising your children until they become legal adults.
You can choose that same guardian to manage property that you leave to your minor children or you can name someone different. You can name a “property guardian,” a “custodian,” or a “trustee” to manage the property. In most cases one guardian raises the children, and also manages any inheritance(s) left for the children.
28. Am I legally required to leave an inheritance to my spouse and children?
If a spouse dies, then the surviving spouse may elect to take a one‑third share of their estate. This is called an elective share. Basically, a spouse can’t be disinherited. The surviving spouse has a right to an elective share of the deceased’s estate. The only way that a surviving spouse can be completely disinherited is if the parties execute a prenuptial agreement. In a prenuptial agreement both spouses can agree to waive any claims to an elective share of each other’s respective estates.
Your elective estate not only includes property in your name alone, but it also includes most assets with beneficiary designations such as bank accounts, securities, IRA accounts, your interest in jointly held property, annuities, certain interests in trusts, the cash value of life insurance, and even property that you might transfer to a child during the one‑year period preceding your death. In other words, you cannot easily ignore your spouse’s rights to his or her elective share of your estate. Many clients ask me how the surviving spouse will be able to claim his or her share if the assets are left in trust for a child. The answer is that the surviving spouse can file a probate proceeding, and then force the child to return the assets to satisfy the elective share obligation.
Generally, it’s perfectly legal to disinherit a child. There is no law that requires a parent to leave an inheritance for their child.
30. Can someone try to challenge my will after I die?
Very few wills are ever challenged in court. It is a very expensive and time-consuming process to challenge a will. When a will is subject to challenge, it is usually done so by a close relative who feels somehow cheated out of a share of the deceased person’s property. The legal standard to invalidate a will is then it must be proven that the will suffers from a fatal flaw; a) the signature was forged; b) you weren’t of sound mind when you made the will; c) or you were unduly influenced by someone.
For all practical purposes, a person must be pretty far gone before a Probate Court will rule that the testator lacked the capacity to make a valid will. The mere fact that the testator may have been forgetful or he had the inability to recognize friends doesn’t, by itself incapacity. A will can also be declared invalid if a Probate Court determines that it as procured by “fraud” or “undue influence.” This type of cause of action usually involves some evil heir manipulating a person of unsound mind to leave allo, or most, of his property to the evil heir. Will contests based on these grounds are very hard to prove, and are rarely filed.