Creating a last will and testament is an important step in planning for the distribution of your real and personal property upon your death. New Jersey wills allow the testator (the person making the will) to provide for a spouse, domestic partner, children, other family members, friends, and even pets after his death.
Not to be confused with a last will and testament, a living will provides instructions should you become incapacitated and incapable of making decisions regarding your medical care. Accordingly, such a document would take effect, if necessary, within your lifetime while a last will and testament does not. New Jersey law specifically allows living wills, also known as advance directives.
Do You Need a Last Will and Testament?
Although a last will and testament is not legally required, without a will, the laws of intestacy will determine the distribution of an estate's assets. The outcome under intestacy rules may not coincide with the decedent's wishes, however, which means it is generally advisable to create a last will and testament.
A last will and testament can serve many purposes, but one of the biggest benefits is that it gives the testator the opportunity to choose the executor of the estate, the person who will be responsible for carrying out the wishes contained in the will. Making provisions for this decision ahead of time can give a testator great peace of mind knowing his estate will be in the right hands; without a will, a court will choose the executor of an estate.
A testator can use a will for various purposes, but the most important is to express how assets such as houses, vehicles, business ventures, and cash, should be divided upon the testator’s death. A testator can also name a guardian for minor children through a last will and testament.
Moreover, in addition to trusts that provide a benefit for people, New Jersey law specifically allows for the creation of a trust for the care of animals alive during the settlor’s lifetime (“pet trust”); such a trust must terminate when there is no living animal covered by trust or after 21 years, whichever occurs earlier. A New Jersey will gives you the option of caring for your animals after your death in this manner.
Before the terms of a Georgia last will and testament can be effectuated, the will must be proven in probate court. Probate is the court-supervised process of distributing the estate of a deceased person. It is important to note that New Jersey has a simplified probate procedure for those with small estates in two different circumstances:
(1) the value of assets doesn’t exceed $20,000 and the surviving spouse or domestic partner is entitled to it all; or
(2) there is no surviving spouse or domestic partner and the value of assets doesn’t exceed $10,000.
In a regular probate proceeding in New Jersey, the person named to serve as executor must request from the Surrogate's Court “Letters Testamentary,” which give the executor the authority to handle the estate from paying debts, keep the estate’s assets safe, and distribute the remaining property as the will directs.
Intestacy: Dying Without a Will
When someone dies without a will, he is said to be “intestate,” and the laws of intestacy kick in. In New Jersey, if a decedent is survived by only a spouse or domestic partner and no children or by only a spouse and descendants who are also descendants of the spouse, the spouse inherits everything; alternately, if the decedent is survived by only children but no spouse, the children inherit everything.
The surviving spouse or domestic partner would have to share the estate, however, if the deceased leaves behind parents or descendants who are not also descendants of the surviving spouse.
Exceptions to Ability to Distribute Property
Only property titled in your name at your death may be distributed according to a New Jersey will; jointly held property, then, may not. Also, a surviving spouse or domestic partner may elect to take an elective share, or portion, of the estate even though he or she was not included in the will.
Form a Last Will in New Jersey
The basic requirements for a New Jersey will include the following:
- Age: The testator must be at least 18 years old.
- Capacity: The testator must be of sound mind.
- Signature: The will must be signed by one of the following:
- Some other person in the testator’s name in the testator’s conscious presence, by the testator’s direction.
- Witnesses: The will must be signed by at least two individuals, each of whom signed within a reasonable time after having witnessed either the signing of the will or the testator’s acknowledgement of the signature or of the will itself.
- Writing: A New Jersey will must be in writing to be valid.
- Beneficiaries: New Jersey does not limit to whom property may be left in a last will.
Other Recognized Last Wills in New Jersey
In addition to the last will and testament as described above, New Jersey also recognizes the validity of a handwritten will (“holographic will”) so long as the signature and material portions of the document are in the testator’s handwriting. Such a handwritten will does not need to be witnessed.
Changing a New Jersey Last Will and Testament
A New Jersey last will and testament may be changed at any time by another will, by codicil (an amendment to the will), or by another writing declaring the alteration; any such change must follow the same execution procedures required of wills.
Revoking a New Jersey Last Will and Testament
The revocation of a New Jersey will can be accomplished by a subsequent will that revokes the previous will or part of the will expressly or by inconsistency or by “the performance of a revocatory act on the will, if the testator performed the act with the intent and for the purpose of revoking the will or part or if another individual performed the act in the testator's conscious presence and by the testator's direction.” Such a revocatory act includes “burning, tearing canceling, obliterating or destroying the will or any part of it.”