DYING WITHOUT A WILL: WHO GETS YOUR ESTATE

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

Many people pass away without executing a Will. I recently completed an estate administration for my client Alvin. Alvin’s wife, Arlene, passed away without a Will. Arlene had two children from a prior marriage, Stuart & Samantha. At the time of Arlene’s death she held the following assets:

  1. a cash account at a local bank in her name alone worth $50,000.00
  2. a home in New Jersey in her name alone worth $300,000.00. This was the home Alvin and Arlene resided in during their marriage.

Because Arlene failed to prepare a Will during her lifetime, the New Jersey intestacy statutes apply. In this example, Alvin was entitled to half the estate as was Stuart & Samantha. Arlene’s children forced Alvin to sell the principal residence and relocate to smaller quarters, so they could get their hands of their mother’s estate. This tragic tale could have been avoided had Arlene prepared a Will during her lifetime, and may be a lesson for all readers of this article especially those with children from another marriage.

Below I have summarized the intestacy laws in NJ, for those passing away without a Will:

A. What your Surviving Spouse Gets:
Your entire estate if you have no surviving issue and no surviving parent. The first $50,000 plus one-half of the balance of your estate if either

  • you have no surviving issue but have a surviving parent or parents
  • you have surviving issue and all of them are also the issue of your spouse

One-half of your estate if you have surviving issue but one or more of such issue is not also the issue of your spouse (e.g., children by another marriage.)

B. What your Surviving Children or Grandchildren Get:
Your entire estate if you have no surviving spouse; Half your estate if have a surviving spouse who is not the parent of one or more of your children; Half your estate less $50,000. if you have a surviving spouse who is the parent of all your children.

C. What your parents get:
Your entire estate if you have no surviving spouse or surviving issue; Half your estate less $50,000 if you have a surviving spouse but no surviving issue; Nothing if you have surviving issue.

D. What Your Brothers and Sisters Get:
Your entire estate if you have no surviving spouse, issue or parents; Nothing if you have surviving spouse, issue or parent.

E. What Other Relatives Get:
If you have no surviving spouse, issue, parent, brother or sister, then your entire estate passes as follows: a) To the surviving issue of your parents, other than your brothers and sisters (e.g., nieces, nephews, grand-nieces, grand-nephews, and so on); if there are none, then: b) To your surviving grandparents or their issue (e.g., aunts, uncles, first cousins, first cousins once removed and so on.) If you die without any relative listed above surviving you, then your estate is taken by the State of New Jersey (called Escheat).

IN SUMMARY

Making the best plan and the best Will takes knowledge and expert advice. If you do not have a Last Will & Testament, now is the time to consider signing one. A Will is tailored to your own particular needs. Only by planning in advance, are you assured that your wishes will be implemented. If you plan properly and have your plan reviewed periodically by an attorney, 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.