If you are thinking about creating a will all by yourself without any legal assistance, you should understand some facts.
First, we should confront the obvious. Since you are reading this on an estate planning attorney’s website, your first thought would be that we are not going to be objective on the subject. In fact, we are required to pass along truthful information, and we would do so even if we were not.
Under the laws of the state of New Jersey, you do not have to be an attorney to create a will, and you do not have to engage the assistance of an attorney to create a valid will. The basic legal requirements are pretty straightforward.
When you state your final wishes in a last will, you are called the testator. In order for the will to be valid in the eyes of the law, two witnesses must watch you sign the will. There can be no coercion, fraud, or intimidation involved in the signing. Plus, you must be fully competent mentally when you are signing your last will.
Notarization is not an absolute requirement. However, after someone passes away, the will is admitted to probate. There is a proving of the will, and the Surrogate’s Court has to make sure that the will is valid. They do this in part by contacting the witnesses.
You can speed up the process so that the court does not have to contact the witnesses if you do in fact go to a notary to obtain a self proving affidavit.
Is It Wise?
As you can see, it is possible to create a last will on your own. Plus, you do not necessarily have to get out a pen and paper to do so. There are downloads and worksheets that can be obtained online that lead you through the process.
This can seem like a foolproof path to a well constructed estate plan. However, if you look into the subject objectively, the facts tell a different tale. A couple of years ago, three prominent legal professors examined wills that were created with tools that were acquired from a trio of the top sellers of generic legal documents.
They did not like what they saw, and they provided negative feedback. The entity that engaged the professors was the highly respected magazine and website Consumer Reports.
The fact that unintended negative consequences can potentially result if you create a last will on your own is only part of the equation. Are you sure that a last will is the best estate planning documents for you given your circumstances and objectives?
Many people go forward with the assumption that trusts are only useful for multimillionaires. In fact, this is not true. Trusts can accomplish a host of different objectives that are held by ordinary people who are not extraordinarily wealthy.
For example, most seniors will need long-term care, but Medicare will not pay for a stay in a nursing home or assisted living community. Medicaid will pick up the tab if you can qualify, but you would not qualify if you have significant assets in your name, because it is only available to people with very limited financial resources.
If you maintain direct personal possession of your property until the time of your death, and you create a will to direct the distribution of the property, the point may be moot. There may be nothing left to pass along to your loved ones after nursing home costs are paid.
On the other hand, under the right circumstances, if you were to convey assets into an irrevocable Medicaid trust, if you do need living assistance, the assets in the trust would not be counted, so you could qualify for Medicaid.
If everything is done along the correct time line, your beneficiaries would inherit the remainder in the trust after your passing without penalties.
This is just one of many, many reasons why a trust could be preferable to a will.
Schedule a Consultation
Any time you are going to make a very big financial decision that involves a great deal of money, you probably seek out professional guidance. When you plan your estate, you are arranging for everything that you own to be transferred to the people in your life that you care about the most. This is something that should be very carefully handled.
If you would like to discuss everything in detail with a licensed professional, call us at (908) 222-8803 or send us a message through our contact page to set up a consultation.
Alan Augulis, Estate Planning Attorney
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