Last Will

 

When you’re ready to prepare your Last Will there are a few decisions you’ll need to make before the documents can be prepared for your signature.  This topic is a bit daunting for many people, so feel free to ask any questions that come to mind after skimming this page.  

One of the questions I’m sometimes asked is whether one will can be utilized for both a husband and wife if they are married.  The answer is no. Every person needs their own will, although many husbands and wives do have wills that name the same beneficiaries, etc.  These are sometimes referred to as mirror wills.

If you have young children, you’ll need to appoint a guardian in the event you and your spouse (if you are married) die in a common accident or disaster.  We suggest someone over the age of 18–possibly someone that has children of their own, and lives nearby so the children can remain in their same school.  A sibling is often your best bet, but even grandparents can take this role if need be.

If you have beneficiaries that are minors, you’ll need to appoint a trustee that can manage those assets in a minor’s trust, which may be included in your Last Will or may be a separate document, until the beneficiary reaches the age of majority (18 in this setting) or older.

You’ll need to appoint an Executor and, perhaps, one alternate Executor.  The alternate Executor would only serve if your first choice was unavailable.  The Executor runs the show and should be a person who can balance a checkbook and meet deadlines.

Next you’ll need to decide who gets your property.  Many people will divide their property equally amongst their children, but you may want to make special provisions for a child with special needs or a child with a history of substance abuse or depression.

Usually when we prepare a Last Will we also will include a Durable Power of Attorney (“DPOA”).  The DPOA is for managing your financial affairs if you are unable to do it for yourself, or just need a helping hand from one of your adult children or a close relative.  It’s strictly for controlling money, bank accounts, investments, real estate, etc.  It can be as broad or as narrow as you please.  It’s durable because it remains “in effect” even if you’re suffering from dementia or mentally incapacitated.  But the DPOA becomes instantly invalid at the moment of death.

For your Durable Power of Attorney we need you to name an Attorney In Fact and usually one alternate Attorney in Fact.

Lastly we usually also prepare a Living Will, sometimes called a Health Care Proxy (“HCP”).  This is the document that empowers a loved one, relative, or close friend to make health care decisions on your behalf.  We’ll need you to name a person that can make health care decisions in the event you become incapacitated.  A spouse or adult child can often be a good “proxy”.  We also like to name an alternate proxy for this role.

It is our practice to identify the persons you name in your will by their city, state and country (if outside the United States).  If anyone named in your Last Will or other documents relocates, that will not invalidate your instruments.  Many people choose tonnage their spouse as their Executor, etc.  If you do so, we strongly recommend naming one alternate, so your instruments will not necessarily need to be redrafted immediately upon the death of the first spouse to die.  

So here is a handy list for your first meeting with the attorney:

  • Executor
  • Alternate Executor
  • Guardian
  • Minor’s Trustee
  • Attorney In Fact
  • Alternate Attorney In Fact
  • Health Care Proxy
  • Alternate Health Care Proxy

After we discuss the people you’ll be naming in your instruments and your estate plan, we will need some time to properly draft your documents.  We’ll send them to you for review and you can make changes at that time.

Finally, we’ll need you to come in and sign the documents with two witnesses and a Notary Public.   You don’t need to bring your own witnesses.  Incidentally, in order for a will to be valid in New Jersey there should always be two disinterested witnesses present at the signing.  The Notary Public serves in the role of “self-proving” the Last Will so it can easily be admitted to probate.

During the Coronavirus pandemic we have set up special procedures for signing documents.  These requirements are subject to change at any time.  Click here to learn more.

If you’re wondering whether you even need a will, there are a few things to consider.  If you possess nothing but a car or $20,000 in assets altogether. and are survived by a spouse, or $10,000 or less in assets with no surviving spouse, then there is a simplified probate process which does not require a will.  Of course, you wouldn’t even consider this if you have children under the age of eighteen (18), since you’d want to appoint a guardian.  See N.J.S. 3B:10-3 and NJS 3B:10-4.  But you don’t have a crystal ball, so it’s hard to know in advance if you’d have so a low net worth at the time of death.  Better to save your beneficiaries the hassle and prepare a Last Will.

If you die with lots of assets and no will, the State of New Jersey (and most other states) has been “kind” enough to provide a nice and complicated statutory scheme of distribution.  See NJS 3B:5-2, et. sec. Suffice it to say, you want to avoid this possibility at all costs.

What about taxes when you die?  Well the answers to that question keeps changing depending upon state and federal law.  There are several different kinds of taxes including estate, inheritance and income tax.  Some estates and beneficiaries would not be subject to any tax at all, depending on various factors.   

I’d look forward to answering any questions you might have on these topics or any other topics that come to mind.

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