New Jersey Wills

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Making a Will in New Jersey

What are the requirements for writing a legal Will in New Jersey? Find information on making, signing and witnessing a New Jersey Will. The law governing New Jersey Wills is contained in Title 3B Administration of Estates – Decedents and Others. All section numbers displayed on this page refer to this statute, unless stated otherwise. A New Jersey Last Will and Testamentmust be:

  • Made by a person (the testator) who is at least 18 years of age and who is of sound mind; 3B:3-1

 

  • In writing;

 

 

  • Signed by the testator ; and

 

 

  • Signed by at least two witnesses within a reasonable time of witnessing the testator’s Signature. 3B:3-2(a)

 

Who can act as witness?

Any adult who is generally competent (of sound mind) may witness a New Jersey Will. 3B:3-7 The statute even allows beneficiaries to be witnesses. However, to remove any inference of undue influence or duress, it is advisable to use independent persons to witness the Will. 3B:3-8

If the Testator Cannot Sign

A New Jersey Last Will and Testament may be signed by another person on behalf of the testator. This must be done at the testator’s express direction and in his/her conscious presence. The witnesses must then sign within a reasonable time after the testator’s acknowledgment of that signature or acknowledgment of the Will. 3B:3-2(a)

How do I cancel my Will?

If you wish to revoke (cancel) a New Jersey Willyou need to thoroughly follow the appropriate steps. If not carried out properly, problems can arise at the time of probate. The statute requires you to:

  • Make a subsequent Will (which expressly revokes all former Wills); or

 

  • Burn, tear, cancel, obliterate or destroy the Will. 3B:3-13

 

Lawyers recommend you to use both methods.

How do I alter my Will?

You can only change a New Jersey Willby:

  • A Codicil (a document declaring the alteration, executed in the same manner in which Wills are required by law to be executed); or

 

  • Making a new Will (and revoking your former Will).

 

Does divorce void my Will?

No. If you become divorced or have your marriage annulled, only those provisions in favor of your former spouse or your former spouse’s relatives are nullified. The remainder of your New Jersey Will stays in place. To make sure your intentions stay clear, you should make a Will and revoke your prior Will as soon as possible after your divorce or annulment. 3B:3-14

Probating a New Jersey Will

Information and tips on submitting a Will to probate in New Jersey. What is the time limit and procedure for probate?

When to probate a New Jersey Will

The application for probate may be filed at any time after the testator’s death. 3B:3-22

Where is the Will probated?

The surrogates of the several counties or the superior court have the power to admit a New Jersey Will to probate. 3B:3-17

What proof is required?

If the Will is self-proved, then the surrogate may admit a New Jersey Last Will & Testament to probate without further affidavit, deposition or proof. 3B:3-19. However, if the Will is contested, then the testimony of at least one of the attesting witnesses is required. 3B:3-23 If not self-proved, the surrogate will need the proof from one of the attesting witnesses. If this is unattainable, then proof needs to be provided by some other individual who can vouch that the New Jersey Will was executed properly by the testator and attested by one of the witnesses. 3B:3-19

What if the Will is not witnessed?

A court has the power to probate a New Jersey Will that has not been witnessed if: the signature and material portions of the document are in the testator’s handwriting. There must be evidence that the testator intended the document to constitute his/her Will. This can be established by extrinsic evidence (including portions of the document that are not in the testator’s handwriting). 3B:3-2(b)

What if someone’s hiding the Will?

The superior court has the power to order the person to lodge a New Jersey Last Will and Testament with the surrogate of the county for probate. 3B:3-29

Who administers the estate?

If the decedent left a valid New Jersey Will then the court appoints the executor named in the Will, as personal representative. This appointment is by way of issuing letters testamentary. 3B:3-17 If the Will did not name an executor then the court appoints an administrator by way of letters of administration with the Will annexed. 3B:3-17 If the New Jersey Willis not accepted or if the decedent died intestate (without a valid Will), then the personal representative will be:

  • The surviving spouse or domestic partner;

 

  • The remaining heirs of the intestate or some of them;

 

 

  • If there are no heirs or if no one claims administration within 40 days of the death, then the superior court or surrogate’s court may appoint any other fit person. 3B:10-2

 

Estate Taxes

New Jersey has adopted a simplified tax system. This system may be used where a federal return is not required to be filed. The estate must file a Form IT- Estate together with a New Jersey inheritance tax return Form IT-R The Form 706 method requires that the Form IT-Estate be prepared and filed along with a 2001 federal tax return form 706 completed in accordance with the provisions of the Internal Revenue Code in effect on December 31, 2001. The New Jersey estate tax is based upon the federal credit for state inheritance, estate, succession or legacy taxes as it existed on December 31, 2001 and not as it existed on the decedent’s date of death.

New Jersey Will Contests

Do you disagree with a New Jersey Will left behind by your relative? You may be able to contest the Will in court. Before you start any contest action, you should consult an attorney for advice. Challenging a New Jersey Will is a form of litigation, which can be complex, time consuming and expensive. Firstly, you need to be aware that objecting to a New Jersey Last Will and Testamentneeds to be done on valid grounds. Being unsatisfied with the share you received and requiring more is not a valid reason for contest. You can only oppose the Will if you believe it is not valid. A New Jersey Will may be invalid on a number of grounds, including:

  • That the testator did not have sufficient mental capacity to make a Will;

 

  • The Will was not executed properly;

 

 

  • There was fraud or forgery involved;

 

 

  • The testator signed the Will under duress or undue influence.

 

If any of the above grounds are proved, then the New Jersey Last Will is declared invalid. In this situation, the estate will pass in accordance with the state intestacy laws or according to a prior valid Will.

Allowance to spouse or children

Whilst the contest action is pending, an application can be made for an allowance out of the estate income for the support and maintenance of the widow, widower, child or children as the court considers fair. 3B:3-30 In order for the surviving spouse to receive the allowance, he/she must have been ceremonially married to the decedent and living with him/her as a spouse at the time of death.

Time Limits

Once a New Jersey Will has been admitted to probate, it is conclusive as to title to real estate after 7 years. 3B:3-31.

Penalty Clause in the Will

If the Will purports to penalize the person objecting, the clause is unenforceable if the contestant had probable cause for instituting the proceedings.

Disinheriting your spouse or child

Trying to exclude your husband, wife, domestic partner or child from your New Jersey Will? Is leaving a nominal share enough? Before you omit family from your Will, be sure to consult an attorney for proper advice. Simply not naming them in the document or leaving a minimal share is not sufficient. You need to have the correct wording and take any necessary action such as living separate and apart. A lawyer can advise best.

Minimum Entitlements

The statute offers protection for a spouse or child who has been excluded from a New Jersey Last Will and Testament. For example your husband, wife or domestic partner may be entitled to an elective share of one third of your augmented estate. 3B:8-1 Even though children aren’t entitled to the elective share, they may still receive an allowance for their support from your estate if they were dependent on you.

Keep your New Jersey Will updated

If you get married or form a domestic partnership and do not update your Will, then your spouse or domestic partner may be entitled to a share of your estate. Under these circumstances, the amount of the share is based on the laws of intestacy (which can be significantly larger than if you had omitted them from your Will). 3B:5-15 This also applies to omitted children who are born or adopted after the making of your Will. If you don’t change your New Jersey Last Will and Testament, then the child could be entitled to an intestate share of your estate. 3B:5-16 Always consult an attorney to disinherit a person. Don’t rely on a Will to exclude them simply by not mentioning them, especially if the Will was made before they came into your life.

Dying without a New Jersey Will

Intestacy law in New Jersey: who inherits your property if you die without making a Will? See the statute interpreted and examples. Writing a New Jersey Will is a practical way to control how your assets are distributed after your death. If you die without a will (intestate), the state legislation determines this for you.

Married or domestic partnership

If you die without a valid New Jersey Will, your husband, wife or domestic partner only receives the whole estate if:

  • You have no surviving parents or descendants (children and grandchildren); or

 

  • All your surviving descendants are also descendants of your spouse or domestic partner.

 

Your surviving spouse or domestic partner will only be entitled to a portion of your estate if you leave behind a parent or descendent who does not belong to them. Your spouse’s or partner’s share is also reduced if he/she has a child that does not belong to you. To see the actual wording of the statute, scroll down to “New Jersey Intestacy Law” below or scroll to see some examples.

If you are not married or widowed

If you pass away without a New Jersey Will, where there is no surviving spouse or domestic partner, the estate is distributed in the following order of priority:

  1. To your descendants by representation. This means your children all receive an equal share. If any child dies before you, his/her children share that deceased child’s share and so on down the line;

 

  • Your parents equally or to the survivor;

 

 

  • Your parent’s descendants by representation;

 

 

  • Paternal and maternal grandparents or their descendants;

 

 

  • Your stepchildren or their descendants by representation;

 

 

  • If there is no taker, the state of New Jersey.

 

Intestacy Examples

Intestacy rules can be difficult to understand. If you are confused, here are some examples to help illustrate what happens to a deceased resident’s assets where there is no New Jersey Last Willin place: Intestacy rules – wife died without a New Jersey Will. Share of husband and children: Sue died leaving an estate of $300,000. She did not make a Will. She has two children to her husband Shane. Who gets what? Shane: $300,000. Husband died, no Will. Portion received by spouse, children and stepchild: Glen died leaving an estate of $300,000. He left behind his wife Renee, their 2 children & a child from a former partner but no will. Who gets what? Renee: $187,500, Renee & Glen’s 2 children: $37,500 each, Glen’s child from former partner: $37,500. Husband died intestate – which heirs receive a portion; wife, children, wife’s child from former partner? Ted died leaving an intestate estate of $300,000. He left behind his wife Katie and their 2 children. Katie also has a child from a former partner. Who gets what? Katie: $187,500, Katie & Ted’s 2 children: $56,250 each, Katie’s child from former partner: Nil. Wife died without a New Jersey Will. Share to husband and wife’s parents: Melanie died leaving $300,000 and no will. She left behind her husband Jared and her parents. Who gets what? Jared: $243,750, Melanie’s Parents: $56,250. Intestate shares of children and grandchildren when widowed grandmother died. She did not make a valid New Jersey Will: Bessie died without a will. Her estate is worth $300,000. She had 3 children with her husband (predeceased). Two of their children have already died, leaving a granddaughter from one child and two grandsons from the other deceased child. Who gets what? Surviving child: $100,000 (1/3), Granddaughter (single child): $100,000 (1/3), Grandsons (brothers): $50,000 each (share 1/3).

New Jersey Will Forms

Making a Will is the most important step you can take to manage what happens after your death. This document is best prepared by an attorney. If you wish to make a Will yourself, make sure to use the tools available on the internet including Will forms, Will templates and even Will software.

Note: Writing a Will can be daunting. Before creating a New Jersey Will, we recommend you read about:

  • Distributing your property including specific bequests and the residue
  • Appointing an Executor
  • Creating a Trust
  • Appointing a Trustee to look after trust property of minor children or other beneficiaries
  • Designating a guardian for your minor children

Sample Will forms available as free downloads (printable PDF documents) to help create a Will:

New Jersey Will Form: Married with adult children
New Jersey Will Form: Married with adult and/or minor children, includes a trust for minor children
New Jersey Will Form: Married with no children

New Jersey Will Form: Single with adult children
New Jersey Will Form: Single with adult and/or minor children, includes a trust for minor children
New Jersey Will Form: Single with no children

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