Moorestown Wills Lawyer
Moorestown Wills Lawyer
A will often serve as the foundation of a person’s estate plan. Although they might seem simple to create, wills are complex documents that must satisfy certain rules to be legally effective. At Scott Counsel, P.C., we talk with clients about how a will can help them and whether they might need other estate planning documents. Please contact one of our Moorestown wills lawyers today to set up a meeting.
A Closer Look at Wills
Few people fully understand all that a person can accomplish in a will:
- You name your executor in the will. This person is responsible for seeing your estate be probated in court. Your executor might file lawsuits on behalf of the estate, defend the estate, and sell assets to pay taxes. The proper choice of executor is critical.
- You can appoint guardians for minor children. This power allows you peace of mind knowing that your children will be taken care of by loving adults should you die unexpectedly.
- You identify who will inherit your property. You can name a beneficiary for a specific gift, such as your car or your house. Or you can divide the estate between people, such as leaving half to each of your children. Most people do both—identify people to inherit specific pieces and then divide the rest between beneficiaries.
What a Will Can’t Do
Although an essential part of an estate plan, wills can’t do everything:
- You can’t leave certain assets in a will. Life insurance, investment accounts, and joint accounts pass outside probate. You will need to consider this fact when deciding how to divide your estate.
- You can’t place limits on how beneficiaries use an asset. If you leave your adult child $150,000, he can spend it however he likes. However, a trust might be more appropriate at restraining a spendthrift child.
- You can’t disinherit your spouse. New Jersey law provides a surviving spouse with a right to an elective share of the estate even if you left him or her nothing in the will.
- You can’t maintain your privacy. Wills are probated in court, and probate is a public process. If you are well-known in the community, the media or your neighbors could find out the value of your estate at death.
Creating an Effective Will: Formalities
Wills must satisfy certain formalities to be effective. If they don’t, then the will is ineffective. The formalities are found in Section 3B:3-1 of the New Jersey Statutes.
For example, a will must be in writing. This means oral wills are insufficient. If the will is handwritten, then you do not need people to witness you sign it. Someone will still need to prove in court that the handwriting was yours—so there is that to consider before rushing off to handwrite a will.
Most wills are typed and signed by two people who witnessed you sign. These witnesses should be adults of sound mind, but New Jersey law states that a witness may also receive a gift in the will.
You do not have to sign your will in front of a notary, but there are benefits to doing so. A notarized will is “self-proving,” which means the Surrogate does not need to accept other evidence to prove the will is yours.
If a will does not satisfy these formalities, the Surrogate will reject it. This means a prior will might spring into effect or, more likely, you will die without a will, called dying “intestate.”
Creating a Will: Capacity
A will is only effective if the person creating it (the testator) has testamentary capacity. Essentially, this means that you cannot be struggling with cognitive impairment or dementia when you created the will. You must fully understand the extent of your estate and what you are doing by creating your will.
One problem with waiting to create an estate plan is that you increase the odds of a will challenge. For example, if you recently received an Alzheimer’s diagnosis, your heirs might claim you lacked capacity when you created your will right before dying. The Surrogate might hold a hearing to listen to witnesses who described your demeanor when you signed the will. Will contests can be divisive and expensive and should be avoided by carefully creating an estate plan.
What Happens if You Die Without a Will?
Someone without a will (and without other estate documents, like a trust) will be unable to control who inherits their property. New Jersey’s intestacy rules will divide your estate between your survivors depending on certain factors, such as how many times you were married and if you had children from multiple relationships:
- If you are survived by children but no spouse, your children divide the estate equally.
- If you are survived by a spouse but have no children or parents, your spouse inherits the entire estate.
- If you and your spouse had children together, your spouse inherits the estate.
- If you are survived by a spouse but had children with another person, then your spouse receives the first 25% of the estate and half of the rest. Your children receive what’s leftover.
These intestacy rules can become very complicated. The key point, however, is that you cannot prevent someone from inheriting from you from the grave. It is better to put at least a basic will in place to ensure your assets go to the right people.
Choosing the Right Executor
If you die intestate, the Surrogate will need to appoint an administrator for the estate. With a will, you choose who will serve in this capacity as the executor of the estate.
The right choice of executor is critical. This person will gather your estate assets and keep them safe. The executor also must send notice to creditors and pay, settle, or reject any claim. If you were killed by someone’s negligence, then your representative will bring a lawsuit for wrongful death.
Unsurprisingly, you will want to appoint someone detailed and capable of following your instructions and the law. A good personal representative should also be able to deal with squabbling relations who might fight over the will.
Avoid Costly Errors—Contact a Moorestown Wills Lawyer
It’s tempting to use a will template found online and just plug in your personal information before printing it off. Many people believe they can save on legal fees and have an airtight will. Unfortunately, using a template or computer program can lead to costly errors.
To ensure you have the estate plan that’s right for you, contact Scott Counsel today at (856) 281-3131.
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