Wills, Trusts, and Estates
When planning for one’s passing, there are a wide range of legal and financial issues that need to be addressed. Ideally, these issues should be discussed when the individual is in good health and of sound mind. This will avoid having to navigate complex legal, tax, business, and health care decisions during a crisis situation where emotions are running high.
Not having a clear plan in place can lead to increased costs and a loss of control over key personal and financial decisions. An experienced estate lawyer will address each client’s unique concerns, walk them through every phase of the planning process, and develop an estate plan that protects their loved ones when the need arises. A lawyer can provide hands-on asset protection and wealth preservation and ensure that the client’s affairs are in order.
What is a Will?
A will is a legal document that clearly and thoroughly describes the individual’s final wishes, including what should happen to their property and assets in the event their death. When writing a will, there are a number of legal requirements that must be met, including the following:
- The individual must have a clear understanding of the property that they have and what it means to leave the property to someone in the event of their death. In other words, the individual must be of sound mind when developing a last will and testament. The individual must also be at least 18 years old.
- The document should name beneficiaries for some of the property.
- The document must be signed by the individual as well as two witnesses.
- It is not legally necessary to have the will notarized, but if the individual uses a notarized self-proving affidavit, it may make it easier to get through probate.
What Does a Will Do?
In addition to leaving detailed instructions about what should happen to an individual’s property and assets upon their death, a will also serves the following purposes:
- Names an executor.
- Identifies guardians for children of the deceased.
- Determines how debts and taxes will be paid.
- Acts as a legal backup document for a living trust.
It is also important to understand that a will also has limitations. For example, when writing a will, people may not put certain conditions on gifts, including property or other assets, such as leaving money or property to a relative only if they obtain a college degree. A will should not be used to leave specific instructions for an individual’s final arrangements.
Additionally, an individual should not use a will to make arrangements for property or assets that will be left another way. This includes property in a trust or property that the individual named as a payable-on-death beneficiary.
How Do I Prepare a Will?
There are a number of factors to consider when writing a will. While people have the option of writing their own will or downloading a template to help them get started, it is highly recommended that people consider hiring an experienced estate lawyer, particularly individuals who have accumulated multiple properties, extensive assets, and considerable wealth.
When preparing a will, a skilled lawyer will assist a client with every step of the process. The process of preparing a will is listed below.
Conduct a Thorough Review of All Assets and Liabilities
It is very important for people to thoroughly review all assets and liabilities before writing a last will and testament. That way, they will know exactly how much the estate is worth. A person can then decide who the property and asset should be left to upon their death.
In most cases, certain pieces of property and percentages of financial assets are distributed among beneficiaries, including family members, friends, and institutions. The remainder of the estate is then given to a designated person or group of people.
Identify Probate and Non-Probate Property
There are limitations to the property that can be disposed of in a will. The following are examples of property that can and cannot be disposed of in a last will and testament:
- Probate Property: These include real estate, bank accounts, and securities that are held in the deceased’s name alone. The individual may specify how this property should be disposed of in the will. If the individual is married and the property is owned jointly with their spouse, the property will automatically go to the surviving owner under the right of survivorship. This also applies to domestic partners and civil union partners.
- Non-Probate Property: Examples of property that cannot be disposed of in a will include proceeds from a life insurance policy and retirement plans. In both of these plans, the individual will have already named the beneficiary for the investments. The plan’s assets will automatically go to that person upon their death, regardless of whether or not they have a will.
Name an Executor
The person named as the executor of the will can ensure that all of the deceased person’s assets are disposed of properly, that all taxes are paid, and all legal requirements have been met. Most people name a family member, friend, or lawyer as the executor of their will.
Regardless of who the person chooses, they should be responsible, trustworthy, and likely to be of sound mind and body when the person dies. It is also recommended that a substitute executor be named in the event that something happens to the person named as the executor.
Write a Letter of Instructions for the Disposal of Minor Items and Property
People do not always include small personal items in their will. Instead, they may choose to list specific items in a letter of instructions to the executor. By doing this, the person can avoid having to change the will at a later date if they want to leave the piece of personal property to someone else.
What Should I Do Once My Will Has Been Written?
A last will and testament is an important legal document that determines how a person’s financial holdings are going to be distributed. Therefore, there are a number of factors and steps to consider once the will has been written, including the following:
- Copies of the will. The original copy of the will should be kept in a safe place, like in a locked safe or a safe deposit box. Copies should be given to the executor and the individual’s estate lawyer.
- Changes to the will. If an individual wants to make changes to the will, they can cancel the original will by tearing it up. If a new will is written, the most recent version will determine how the property is distributed. If they want to make changes to the will without writing a new one, they may add a codicil, which is an amendment to a last will and testament. A codicil must be kept with the will once it is signed and witnessed.
- Rules relating to children born after the will was written. In the state of New Jersey, children born or adopted after an official will has been written will receive the share of property they would get if their parents or guardians did not have a will. In some cases, the child may be required to prove their relationship to the deceased if there is a will but they are not named as a beneficiary.
- How property is distributed if a named beneficiary dies. If a family member or friend that is named as a beneficiary dies before the person who wrote the will, the property that person would have inherited will likely be left to their children unless otherwise specified in the will. If they have no children, the property will go to the residuary legatee, who is the person named in the will to inherit the remainder of the property after all of the property has been distributed. If there is no residuary legatee, the property will be divided up as if there is no will.
- Rights of domestic partners and civil union partners. When a spouse, domestic partner, or civil union partner passes away, the surviving spouse or partner has a right to one-third of the augmented estate, regardless of what the will states. It is highly recommended that the surviving partner seeks legal advice about what is excluded in the augmented estate as this can be a complicated process.
What is Involved in the Probate Process?
The probate process is important because it allows the court to review the will and ensure that it has been properly prepared and that it is valid and legal. In New Jersey, wills are filed in the Surrogate’s Office in the county where the deceased resided. Once the will has been filed, the County Surrogate has the power to accept the will for probate and authorize the executor that is named in the will.
If an individual passes away without a will, it is said to have died intestate. The administration of the estate will go through what is known as intestate administration, which is overseen by the County Surrogate. The process is similar to probate administration.
The process can be confusing and overwhelming, so it is highly recommended that individuals seek legal guidance from a skilled lawyer who can assist with every step of the process, explain the legal and financial ramifications, and avoid any of the common pitfalls. For example, portions of an estate may be paid to external executors or the state court for costs associated with probating an intestate estate.
What is a Trust?
Wills and trusts are both strategic estate planning tools that protect a person’s property and financial assets. A trust is a fiduciary relationship where one gives another person authority to manage their assets for the benefit of their beneficiaries. A will and testament only becomes active after one’s death, but a trust is active the day it is created.
In addition, an individual may list the distribution of assets before their death. Like a last will and testament, a trust must go through the probate process where they are examined by an authorized court administrator. If the person dies, the trust is not required to go through probate.
Depending on the person’s goals, they may establish a revocable trust or an irrevocable trust. A revocable trust, also known as a living trust, is one where the owner can change the terms at any time. Advantages of living trusts include being able to remove beneficiaries, designate new ones, and add stipulations as to how the trust should be managed. Living trusts are more flexible compared to irrevocable trusts. However, assets are not protected from creditors the way they are in an irrevocable trust.
In addition, if the owner is sued, the assets can be ordered to be liquidated. With an irrevocable trust, the terms cannot be changed once the agreement has been signed. Oftentimes, people choose this type of trust because it removes the assets from the benefactor’s taxable estate. That means that they are not subject to estate tax upon their death. Irrevocable trusts require the assistance of a skilled and experienced lawyer.
What are the Benefits of Estate Planning?
Regardless of one’s financial holdings, there are a number of reasons why people should be proactive about planning for what happens to their property, assets, and other items of monetary value after they pass away. The following are examples of some of the benefits of estate planning and how a skilled lawyer can help:
- Peace of mind knowing that the individual’s assets, property, and other items of value are distributed according to their wishes.
- Establish an advanced health care directive. This is a legal document that specifies an individual’s wishes in the event they become incapacitated. It prevents family, physicians, and judges from making health care decisions for the individual. This can be a standalone document or part of the estate plan.
- Establish a power of attorney. This legal document allows an individual to appoint a person to act for them in the event that they become incapacitated. The person chosen should be expected to put the other person’s needs and wishes ahead of their own.
- Avoid costly and chaotic court battles among family members over assets, property, and even child custody
New Jersey Estates Lawyers at Lyons & Associates, P.C. Assist Clients With Every Phase of the Estate Planning Process
If you require skilled legal assistance with creating a last will and testament, setting up a trust, or any other aspect of the estate planning process, do not hesitate to contact the New Jersey estates lawyers at Lyons & Associates, P.C. Our dedicated legal team will work closely with you to ensure that your affairs are in order, that your loved ones are cared for, and that your legacy is protected. To schedule an initial consultation, call us at 908-575-9777 or contact us online. Located in Somerville and Morristown, New Jersey, we serve clients throughout Somerset, Woodbridge, Morristown, Parsippany, Rockaway, Short Hills, Chatham, Randolph, Madison, and Morris Plains.