Estate planning is an important process that everyone should undertake, regardless of their age, health, or wealth status. A comprehensive estate plan aims to provide for your loved ones and ensure your assets are protected and distributed as you wish if you become incapacitated or pass away. Two of the most common estate planning tools are wills and trusts. But what’s the difference between a will and a trust in New Jersey?
Wills in New Jersey
A last will and testament is a legal document that communicates your final wishes pertaining to your assets and minor children.
Here are some key things to know about wills in New Jersey:
- A will allows you to determine who inherits your assets like your home, bank accounts, investments, and personal possessions. You can name specific beneficiaries or entities to inherit certain assets.
- It permits you to nominate a trusted person to serve as the executor of your estate. This person will oversee carrying out your wishes stated in the will.
- You can use a will to name guardians for any minor children you have in the event of your death.
- A will can establish a testamentary trust that comes into effect at your death to provide for your beneficiaries as you direct.
- Your will must be signed by you and two witnesses in order to be legally valid in New Jersey. It does not need to be notarized.
- Upon your death, your will must go through the probate process. This involves court validation of the will and appointment of the executor.
Some downsides of relying solely on a will include:
- The probate process can be slow, taking 9-12 months on average.
- Your assets will be tied up and unavailable to your family during this time.
- Probate is public, so the details of your estate can become public record.
- If you own property in multiple states, your executor may have to probate your estate in each state. This can be cumbersome and expensive.
Living Trusts in New Jersey
A revocable living trust is an estate planning tool that can hold assets during your lifetime and then distribute them privately per your directives upon death or incapacity.
Here are some key things to know about living trusts in New Jersey:
- You create the trust and name yourself as the trustee to maintain control of assets transferred into the trust during life.
- The trust names a successor trustee to take over management of trust assets if you become incapacitated.
- Like a will, a trust allows you to direct exactly how assets pass to your chosen beneficiaries upon your death.
- Probate is avoided for assets owned by your trust, providing privacy and faster distribution to heirs.
- You can name yourself as the beneficiary of your own trust for lifetime needs. At your death, assets transfer to other beneficiaries without probate.
- Trusts are more difficult to contest than wills. Disgruntled heirs would have to prove you weren’t of sound mind when you created the trust.
- There are some tax benefits associated with trusts, like the ability to reduce estate taxes.
- Trusts allow you to control how and when your beneficiaries inherit. You can structure payouts over time.
- There are costs involved with creating and maintaining a trust, like trustee fees if you use a professional or corporate trustee.
In summary, the main differences between wills and living trusts in New Jersey are:
- Probate – Wills must go through probate, while trusts do not.
- Privacy – Trusts allow you to avoid making the details of your estate public like with probate.
- Control – Trusts allow you greater control over inheritance payouts to beneficiaries.
- Contesting – It is more difficult for heirs to contest a trust versus a will.
- Costs – Creating and maintaining a living trust is more expensive than a basic will.
When to Use a Will vs. a Trust in New Jersey
So when should you use a will versus a living trust as part of your New Jersey estate plan? Here are some guidelines:
A will is a good choice when:
- Your total assets are under $1 million. Below this amount, probate is a relatively simple process in New Jersey.
- You have basic wishes about distributing your estate that don’t require complex controls or provisions.
- You don’t have concerns about making the details of your estate public through probate.
- You don’t own real estate or property in other states that would require ancillary probate.
A living trust is a good choice when:
- You have assets over $1 million. Probate will be more costly and time-consuming at this level of wealth.
- You own real estate or property in multiple states. A trust can avoid multiple probate processes.
- You want to keep the details of your estate private and out of the courts after your death.
- You want to control how and when your beneficiaries inherit assets from your estate.
- You want to minimize taxes for your heirs, like estate taxes or inheritance taxes.
For many people, the best approach is to have both a will and a living trust as part of their New Jersey estate plan. The will is there to catch any stray assets that were left out of your trust. Your estate planning attorney can help you determine the right tools and strategies for your unique situation.
Other Estate Planning Documents
In addition to a will and possibly a living trust, there are other important legal documents that are part of a comprehensive estate plan in New Jersey:
Durable power of attorney – This appoints someone to handle your financial and legal affairs if you become incapacitated.
Healthcare power of attorney – This appoints someone to make medical decisions on your behalf if you are unable to do so.
Living will – This outlines your wishes related to end-of-life medical treatment if you are terminally ill or permanently unconscious.
Letter of intent – While not legally binding, this letter can provide guidance to your executor, trustee, and beneficiaries on handling certain personal matters like your funeral wishes.
Choosing an Estate Planning Attorney in New Jersey
Drafting a customized estate plan with a will, trust, and other documents requires expertise. Estate planning attorneys and elder law attorneys have specialized knowledge in this area.
Here are some tips for choosing the right attorney in New Jersey for your estate planning needs:
- Look for an attorney who devotes at least 50% of their practice to estate planning. This shows expertise.
- Ask about their experience handling estates similar to yours in size and complexity.
- Understand how they calculate fees so there are no surprises. Many charge flat rates for basic wills and trusts.
- Look for membership in WealthCounsel or the National Academy of Elder Law Attorneys as signs of credibility.
- Meet with the attorney in person if possible to assess your rapport. You want to choose someone you feel comfortable with.
- Ask questions to understand how they will approach your estate plan and what strategies they recommend.
- Review sample documents to ensure you understand and like their drafting style.
- Always make sure any attorney you choose is licensed in New Jersey.
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Conclusion
Planning for your eventual incapacity or death may not be pleasant to think about, but it is a necessity. Working with an experienced estate planning attorney to put a will, trust, and other documents in place will provide immense peace of mind. Your loved ones will be protected and your assets will be distributed according to your wishes. While a will is simpler and less expensive, a living trust offers additional benefits like avoiding probate. Discuss your goals with an attorney to decide what strategies are best for your New Jersey estate plan.
