What are the things we want to know for sure when we’re drafting a New Jersey will or really any will?
Who Can Make A New Jersey Will?
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The law is if you’re over 18 and you are of sound mind, then you’re capable of making a will. There are certain formalities that are required whenever you execute a will in New Jersey.
- It must be in writing
- Must have two witnesses.
If you do a handwritten will then so long as the material portions of the will and the signature are done in your handwriting, then unlike in other states, it is a valid will.
Does New Jersey Allow Oral Wills?
New Jersey does not accept or allow non-cupative wills, meaning verbal or oral wills.
Wills With No Witness
Some time ago there was an individual who hand wrote his entire will. He divided it up into 63 shares. He had other beneficiaries outside of the will that were beneficiaries of his IRA and for other beneficiary bequests. The will also had a five-page discussion of his funeral instructions. He passed away and he didn’t have it witnessed. He didn’t do any of those things. What does New Jersey do about that?
Let’s talk about how New Jersey court system works generally. In New York, the procedure is you submit a petition with a bunch of additional forms. You file them with a surrogate. The will is approved by everyone after the world is given notice. In New Jersey, the situation is the opposite. There is a clerk’s office where the surrogate, who’s a non-judicial individual, has the authority to approve the admission of a will to probate without going through a formal court proceeding, but it requires that the will on its face accommodate the requirements of New Jersey’s laws. It has to have signatures. The person has to have acknowledged that they signed it. They have to have witnesses. All those things have to be in writing.
If any of those things are not met then New Jersey requires that the surrogate, the informal process, is not available and the surrogate switches hats and becomes the clerk of a superior court for the purpose of probating wills in a formal proceeding in solemn form, as it is called in New Jersey. You no longer can go informally through a cheap, quick, less than 15-day process and now you have to go through a court process which is expensive, complicated, and that is started by an order to show cause. It’s a whole different project.
Does New Jersey Allow Handwritten Wills?
New Jersey does allow handwritten wills. They do not allow them to go through the simple surrogate process. Handwritten wills need to go to Superior Court, where a lawyer will file an order to show cause, giving reasons why this holographic will should be accepted, notwithstanding the fact that it doesn’t meet the formality requirements of the state statute for self-proving, for a carefully drafted will.
New Jersey is very big on the intent of the decedent, far more than New York. In fact, New Jersey statutes permit extrinsic evidence to be considered. There are cases in New Jersey where the testamentary plan will need to be rewritten. For example, in one case a gentleman did not close the loop on the percentages he was giving out. He gave out 98%. It was I give 98% of these three assets to these people and 64% to these five people and charities. The process in New Jersey as in New York is when a charity is given a percentage of decedent’s estate, the attorney general is tasked with reviewing the expenses and the other things that came off the top of the estate before the charity gets paid. New Jersey takes these issues very seriously. The State will audit every single accounting of every single estate.
Do You Need An Irrevocable Trust?
The purpose and advantage of having a will that matches New Jersey’s requirements are that it makes the entire probate process quick and easy.
Years ago, we had a client who lived in Florida who would send articles from the Wall Street Journal with a note saying, “I just read this article. Do I have this? Do I need this?” They were the kinds of articles wherein other states, there’s a big push, as the primary estate planning document, an irrevocable trust, an agreement where the person sets forth their estate plan in a document that exists that now is revocable, in other words changeable, and is intended to avoid the probate process because, in most states, certainly not New Jersey, the probate process is expensive and time-consuming.
At that time, I said to him, “Oh, no. Nobody is doing irrevocable trust in New Jersey because New Jersey is a cheap and quick probate state. I don’t even need to go with you. You take the will. You take the death certificate and as the Executor, you walk into the surrogate’s office, and it’s just a clerks’ office, and they say, ‘Do you promise to do what it says?’ Is it more than 10 days after the person died? Do you have photo ID? If the answer is yes to all questions, then the will is admitted to probate. Within three to five days, as long as it’s 10 days or more after the decedent died, letters testamentary will be issued, which is the certificate giving authority for the person named as executor to act, and the will is admitted to probate and we’re off.
Our opinion on the value of the Irrevocable Trust has changed over the years because what we are finding is that while the probate avoidance process is not an enormous issue in New Jersey, the fact that you are aging in place to ages we have never seen before in enormous numbers and becoming mentally incapacitated is a problem. The trust is a perfect vehicle for helping people to carefully and wisely transfer assets from themselves while they are well to another while they are not well but alive and then finally when they pass. The irrevocable trust becomes like a will.
After A Will Is Probated
After the will is probated is when the people who are interested in the estate are given notice, which is a totally backward structure from New York. I remember when I first started working in New Jersey, I had a conversation with the surrogate there and I said, “How can this be? Aren’t you worried that people are going to do really bad things?” He said, “We have a different philosophy in New Jersey. We believe that for the 99% of the time when there is no fraud, we are not going to twist our entire probate process to the 1% where bad things are going on. We may miss some objections. We may miss some things in the notify-them-first method, but we think that’s worth it for all of our citizens,” which was pretty shocking because New York allows none of that. We assume fraud all the time in New York.
The New Jersey estate and probate team at Gartenberg Howard has experience helping New Jersey families work through these and many other issues that go into a comprehensive estate plan. Give us a call or fill out the form below to discuss your specific needs.