DO I REALLY NEED A WILL?

By: BENJAMIN D. ECKMAN, ESQ.
Elder Law Attorney

A Will is a legal document, executed in accordance with state law, that takes effect upon the death of the testator, the Will maker. If properly drafted and executed, the Will is probated and the decedent’s assets distributed according to his or her wishes.

Probate is the process by which the proposed executor proves that the Will has been executed in the proper legal manner. It is the process of gathering the assets of the estate, paying all debts and claims according to law, preparing and filing the necessary tax returns, and distributing the remaining estate to the beneficiaries. A Will is probated when it is filed with the Surrogate of the county where the decedent lived at the time of his or her death.

The executor is the individual named in the Will responsible for distributing the property and paying the debts of the estate. An executor should be any responsible adult person of your choice. The selection of an executor is yours only if you make a Will. You realize the value of having qualified people help with your affairs during your life. It is just as valuable after you die.

Aside from naming the executor, you should also name the people to whom you wish to leave your property, your beneficiaries. Additionally, if you have minor children, you should appoint a guardian who would serve if you and your spouse die before the children reach the age of majority. Finally, you should list an alternate executor, an alternate guardian, and alternate beneficiaries in case your first choices die before you do.

It is strongly recommended that each individual periodically update his or her Will. It should be updated when there are changes in financial, family, or personal circumstances, such as birth, death, marriage or divorce. Wills should also be updated to take advantage of changes in the tax law. In addition, special provisions are required in the event a beneficiary under your Will is disabled, with either a physical disability or a mental illness. If you want to change your Will, you should have a new one drafted by a lawyer. You cannot legally change your will by crossing out or adding clauses.

If you die without a Will, state intestacy laws will determine how your estate will be distributed after your death. That may or may not be what you intended. If you make a Will, your property will be distributed in accordance with your wishes. If you die without one, the Surrogate will appoint someone to administer your estate, which generally requires additional time and expense.

If you do not have a Will, now is the time to consider signing one. Only by planning in advance, are you assured that your wishes will be implemented and you may be able to plan your estate in ways that can lower or eliminate your tax burden and leave more to your beneficiaries. Remember, making a Will is one of the wisest investments of your life – and after.

Benjamin D. Eckman, Esq. concentrates his practice on Elder Law & Estate Planning. Elder law is intended to broadly assist “extended living”. An elder law practitioner provides the legal information necessary for persons whose lives will extend or have already extended beyond the time when all children are usually out of the house and when regular employment ceases. After the elder law attorney and client complete their work, legal documents have been drafted, tax considerations have been analyzed, and a plan to protect the elder’s estate has been implemented.

Benjamin D. Eckman’s practice focuses on Estate Planning & Elder Law – legal issues facing senior citizens. Benjamin D. Eckman received his Bachelor’s Degree in Business/Accounting from Touro College and his law degree from Seton Hall University School of Law. He is a member of the New York State Bar Association, the New Jersey State Bar Association, the National Academy of Elder Law Attorneys, the Elder Law Section and Real Property, Probate and Trust Section of the New Jersey State Bar Association, the Union County Bar Association, Passaic County Bar Association and the Bergen County Bar Association. He can be reached at (973) 709-0909, (908) 206-1000 or (201) 263-9161.