For those who haven’t yet engaged in necessary estate planning, the entire process can sometimes seem more than a little intimidating. It is, after all, a process that forces us to confront out own mortality, as we make decisions about end-of-life concerns and the type of legacy we want to leave behind for loved ones. Sometimes, it can be helpful to ease that stress by learning a little more about the process and how various laws impact your decision-making. Here are six things that you should remember about New Jersey estate law, to ensure that your estate planning decisions accomplish your objectives.
Everyone Should Have a Will
Make no mistake: you need a will. It’s an essential estate planning document that all of us should have, regardless of estate size. Not only is it an important tool for ensuring that your assets are properly distributed when you die, but it also provides a great vehicle for passing on other instructions as well – like naming guardians for your children. Even if your primary estate planning strategy is built around the use of living trusts, you should still have at least a pour-over will to address any properties that don’t make it into the trust before you die.
In New jersey, Probate is Handled by the Surrogate’s Court
For newcomers to the state who are searching for information about the New jersey probate court system, the terms can be a little confusing. In New Jersey, matters related to probate are handled by someone known as the Surrogate. There is a Surrogate judge in each county, and his or her office is charged with resolving probate concerns, handling guardianship issues, dealing with adoptions, and similar affairs.
Wills Don’t Help Your Estate Escape Probate
A lot of people assume that having a will is enough to let your estate avoid probate, but it’s not. Probate is a process that is used to settle estates where property has no other legal means for being transferred from the deceased to its new owners. The will requires some sort of process to enforce its provisions and that process is always probate – except in instances where the estate is so simple or small that it can be resolved through expedited processes. Still, you should assume that your Last Will and Testament will require a Surrogate’s Court action to settle the estate.
Execution of the Will is Vital
With the current trend in do-it-yourself estate planning efforts, it is important to emphasize that wills must be properly executed if they are to be probated. Surrogates do not have the power to deal with wills that cannot be proved. Any will that has defects or that is otherwise confusing will be redirected to Superior Court for judgment. At that point, the only way for the will to be probated is for the Superior Court to issue an order allowing the Surrogate to handle the matter. Serious defects can make that feat impossible, and leave the Executor of the will with no other options than to settle the estate in accordance with the state’s laws on intestate succession.
Intestate Succession Should Be Avoided
If you’ve been putting off the estate plan process because you’re comfortable with the state’s intestate laws being used to distribute your assets, you might want to examine that issue more closely. The fact is that intestate succession laws can result in unforeseen consequences, with asset being delivered to at-law heirs that you might want to leave out of your will. Sometimes, a favorite heir can end up receiving far less than what you would prefer, while other would-be beneficiaries are not covered by the law at all. The bottom line is simple: if you want to ensure that the right people get your property when you die, the only way to accomplish that goal is to create an estate plan.
Specific Areas of the Law Can Impact Your Will
It’s also important to understand that New Jersey law can impact your will’s provisions and even contradict them in some instances. For example:
- If you made out your will before you were married, and never bothered to include your spouse later, the law in the state will still provide her with a share of the estate under the intestate rules. This omitted spouse provision is designed to protect a spouse’s interest in the estate.
- There is also something known as an elective share, where the surviving spouse has the legal right to claim the inheritance left to him or her under the terms of the will or elect to claim one-third of the so-called augmented estate. This can get very technical, but an attorney can help you to understand how it all works.
- For married couples who want to forsake these options, there is the opportunity to create and sign a marital agreement. In that agreement, both parties need to agree that neither will use the omitted spouse or elective share provisions of the law when the other dies.
The important thing to take away from all of this is that estate planning is not really something that most people should be undertaking on their own. New Jersey law has much to say on the subject, and it can be difficult for untrained laypeople to navigate these laws and rules without assistance from trained professionals. There is good news, though: a New Jersey estate planning attorney can help you to identify your planning challenges and make the types of sound decisions you need to ensure that your strategy meets all your most important goals.
At the Augulis Law Firm, our estate planning team can help to make that process as simple as possible. We’ll work with you to identify your broad and specific planning needs, and assist you in putting together a comprehensive strategy that will achieve your goals. Whether it’s wills, trusts, financial planning, or incapacity safeguards, we’ll provide you with the tools you need to protect yourself, your interests, and your family. To learn more about how you can enjoy the benefits of estate planning with professionals who understand New Jersey estate law, contact us at our website or give us a call at (908) 222-8803.
Alan Augulis, Estate Planning Attorney
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