Wills & Estates

YOUR WILL

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What is a will?

A will is a written document which, after your death, directs how your individually owned property will be distributed, who will be in charge of your property until it is distributed and who will take care of your minor children if the other parent should die. You should remember that the term "property" under the law includes real estate as well as all other possessions and rights to receive money or items of value. Most property can be owned either individually or jointly with another person.

Do I need a will?

Yes. You do not have to be wealthy or near death to do some serious thinking about your will. As a matter of fact, the less property you own the more important each dollar becomes and the more you need a will. Property which is jointly owned with another with the right of survivorship and insurance and other financial instruments payable to a named beneficiary upon your death are not subject to the provisions of your will. However, almost everybody sooner or later has property, which will be subject to the provisions of a will. For instance, the jointly owned property will be governed by the terms of your will if the co‑owner should predecease you or you may receive property by inheritance, bequest or gift. (Even jointly owned property must be dealt with in preparing death tax returns.) More importantly, you can name in your Will who will be your minor children’s guardian in the event your spouse dies before you do. Also, you can designate who will handle the assets you give your children in your Will until they are adults.

What if I die without a will?

If you die without a will, your property will be distributed according to New Jersey statutes. The procedure is complicated and the law makes no exceptions for persons in unusual need or for your own wishes.

Here is the way your property will usually be divided if you die without a will:

Your spouse will receive your entire estate if you die leaving no living descendants or parents. Your spouse will receive the first $50,000 plus one‑half of the balance of your individually owned property if you are survived only by your spouse and descendants born of your marriage to such spouse or by your spouse and a parent. If there is a descendant of a prior marriage, your present spouse will receive only one‑half of your individually owned property.

Any share not passing to your spouse, or your entire estate if you are not survived by a spouse, will be divided among children, or descendants of deceased children, if any, or will pass to your parents, grandparents, or their descendants.

In very unusual cases where you die without surviving descendants, parents or grandparents or children or grandchildren, your estate will pass to or “escheate” to the State of New Jersey.

In addition, your spouse may retain a lifetime right to one‑half of the income from any interest in real estate you owned, if the real estate was acquired before May 28, 1980. Your spouse will probably be appointed as the administrator of your estate. If you have no spouse, there may have to be an agreement among your nearest relatives as to who will be the administrator. A bond will have to be purchased to insure that the estate is properly administered. Another bond will have to be obtained if you have minor children. Your will can name the person who will administer your estate and can provide that no bond be posted.

You can avoid the rigid provisions of State law and distribute your property according to your own wishes ‑by having a will.

Can I keep my husband or wife from getting my property?

Under New Jersey law, your spouse is entitled to a share of your estate. This is called the elective share provision. The calculation of the spousal elective share is a complicated process. If you're thinking of limiting the provision for your surviving spouse, you should contact Woliansky & Doyle, Esqs.

May I change my will?

Yes. A will may be modified, added to, or entirely changed at any time before your death provided you are mentally and physically competent and desire to change your will. But you should never make those changes yourself on the original will since it will then become impossible or very difficult to probate! In the event you wish to change your will contact Woliansky & Doyle, Esqs. You should consider revising your will whenever there are changes in the size or circumstances of your family or the size of your estate. For example, when your children are young you may think it best to have a trust for them so they do not come into absolute ownership until they are mature (for example, 25 years of age) but when they grow older and you have had a chance to observe them you might think that they should have absolute ownership earlier or later.

Can a will save money?

Yes. Your estate will be subject to administration whether or not you have a will and in most cases a will reduces the cost by eliminating the requirement of a bond. With a well‑drawn will you may also reduce death taxes and other expenses. You may be surprised at the amount of taxes which can be saved by a carefully considered estate plan.

How do I make a will?

A will must not only be prepared within the legal technicalities prescribed by law but should also be prepared so that it leaves no question regarding your intention. A homemade will is frequently a recipe for disaster, which will usually be discovered only after you die. Many times even a simple will drawn by a layman raises questions of interpretation, which must be resolved by expensive court proceedings. "Do it yourself" computer software wills are a problem. If you read the material, which accompanies the software, it tells you that the software company is not providing legal advice. So you are acting as your own lawyer in drafting the will you hope distributes your assets the way you want. Drafting a will requires a lawyer’s professional learning, skill and experience. Woliansky & Doyle, Esqs. might also be able to suggest ways of reducing death taxes which would more than pay for our fees.

Is a Will expensive?

No. Woliansky & Doyle, Esqs. usually charge a flat fee for preparation of a simple will. Occasionally, if the will is more complicated we will charge on the basis of time spent preparing your will. Also if your estate should be more complicated and require more work by Woliansky & Doyle, Esqs., the charge will, of course, be larger but the overall savings in taxes and administration costs will typically far outweigh our charge.