WHERE THERE IS A WILL, THERE IS A PROBATE;
WHERE THERE IS NO WILL, THERE IS A MESS

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

What is a Will?

A Will is a legal document 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. A Will is a document, executed in accordance with state law, which directs how some or all of your property is distributed at your death. An executor is designated under your Will who assembles the assets of your estate and pays debts and taxes. If you have a child who is a minor, a guardian should be appointed under the will who would serve if you and your spouse die before the child reaches the age of majority.

What are the formalities to make a valid Will?

To be effective, a Will must be written, signed by the testator and witnessed by at least two people. Each witness must personally witness the signing of the will. Witnesses do not have to read the will or know it’s contents. However, they must be told by the testator that it is his will, and that he wants them to be witnesses to its execution.

What is Probate?

When a person dies leaving assets in his or her name alone, it will be necessary to present the Will to the Surrogate for probate. A Will can not be probated until 10 days after death. The executor must present the original Will, certified copy of the death certificate and a list of names and addresses of the closest next of kin to the Surrogate in the county where the decedent resided at the time of death. Papers are prepared by the court and signed by the executor. If all requirements are met, the Will is admitted to probate and certificates are issued to the executor. These certificates allow the executor to execute documents formerly done by the decedent such as transfer automobiles, bank accounts, investment accounts, etc. The original Will is retained by the Surrogate and filed and recorded in the Surrogate’s Court. The Will becomes a public record and is listed in the general index. Probate is usually a straight forward process, but procedures may vary from county to county.

What is an Executor and what does he or she do?

The executor is the individual named in the Will responsible for carrying out its provisions and handling your property. The executor may be a beneficiary under the will, a member of your family, your legal or financial advisor, a friend, a bank, trust department or business associate. It is also advisable to name a contingent executor to act in case your first selection dies before you, or, for any reason, is unable to serve as executor. The choice 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. The executor gathers the assets of the estate, pays its debts and claims, prepares and files all the necessary tax returns, and distributes the remaining estate to the beneficiaries.

Do I really need a Will?

Without a Will, the state will determine how your estate will be distributed after your death through the intestacy rules. A Will ensures that your property will be distributed as you wish and handled by the person of your choice.

Who should make a Will?

Every person over eighteen years of age, having real and personal property, should make a Will.

Who should be named in a Will?

Other than the people whom you want to receive your property, you should name both an executor and an alternate executor. If you have minor children or beneficiaries, you should also appoint a guardian and/or trustee to handle their funds.

How often should a Will be updated?

It is strongly recommended that each individual periodically update his or her Will. Certain changes in your life, such as marriage, birth of a child, purchase or sale of property, change in your financial status, or changes in various tax laws may warrant you to revise and update your Will. In addition, special will provisions are required in the event a beneficiary under your will is disabled, such as physical disability or a mental illness. Separation or divorce are situations that give rise to consideration of a new Will. Other such situations are death of one or more major beneficiaries, a change in probate or death tax law.

How do I change my Will?

If you want to change your Will, you should either execute a new one or have an addition, called a codicil, drawn up by a lawyer. You can not legally change your Will by crossing out or adding clauses. Changing your will by drawing lines through items, erasing, writing over or adding notations is improper and may destroy it as a legal document. Your will can be changed at any time you wish, as your assets, intentions or desired beneficiaries may change.

Where should I keep my Will?

Your Will should be kept in a secure place such as safe deposit box or fire proof strong box. But more importantly, your executor should know where it can be found. It is a good idea to give a copy of the Will to your executor with a notation where the original one can be located.

Does having a Will minimize Estate and Inheritance Taxes?

If you have a Will, you may take advantage of the opportunity of tax and estate planning and avoid unnecessary bonding costs.

What happens if I die without a will?

If you die without a Will, the State of New Jersey will determine who shall receive the property in your name. In most instances, your estate will be distributed among your family members, but perhaps not in exactly the way you prefer. The law makes no distinction as to youth or age, illness or health, wealth or poverty, or any other special circumstances which often vitally affect the well being of your own family, or the special causes that are most important to you. Because New Jersey does not recognize common law marriages, you must have been legally married for your partner to be recognized by the state. If you die without a Will, the Surrogate will appoint an administrator of your estate. Once the administrator is appointed, the administrator performs the same tasks that an executor would. Administration of an intestate estate generally requires additional time and expense. Only through a legal Will can you ensure that your property will be distributed in accordance with your wishes.

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.