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1. What is a will and do I need one?

A will is a legally enforceable written document directing which assets go to whom. If you want to choose how your assets are distributed and who your personal representative is, then yes, you need a will.  

2. Can a will save money?

Yes, a will can eliminate the requirement of a bond which will reduce administrative expenses and it could permit your estate to take advantage of tax savings.

3. Can I prepare my own will?

Yes, but without professional guidance and advice, it may not be legally sufficient to be admitted to probate. In addition, self-prepared handwritten "holographic" wills can only be admitted to probate after a formal Superior Court hearing, which takes time and money. 

4. Can I name more than one executor?

Yes, you can name two or more executors to serve at the same time.  However, the parties must work in concert with one another.  Some banks do not recognize co-executors.  Keep this in mind, especially if potential co-executors live in separate areas.  

You can name one executor and then alternate executors should the first-named executor not want to serve or pass away.  

5. What effect does a will have on real estate owned jointly by husband and wife?

Real estate owned jointly by husband and wife in the form of ownership legally known as "tenancy by the entirety" is not controlled by the will of the spouse who dies first. Absolute ownership of the property will pass to the surviving spouse who has rights of survivorship, regardless of what the will may provide.

6. What effect does a will have on joint bank accounts or certificates of deposit?

Accounts held jointly may be owned with right of survivorship and if you want the account to pass outside the estate when one owner dies, make sure you set the account up that way.

7. Can I leave assets to a minor?

If assets are left to minor children and no custodial account or trust was established to manage that property, the Surrogate's Court will need to appoint a property guardian to manage that property until a child turns eighteen.  Funds will be held in a trust fund by the Court.  

8. What effect does a divorce have on a will?

A divorce operates as a revocation of any bequest made to your former spouse or any appointment of your former spouse as executor, but in all other respects, the will is still effective.

9. What does it mean for a will to be self-proving? What happens if the will is not self-proving?

What does it mean for a will to be self-proving?

For a will to be considered self-proving, it must contain specific wording related to and including two witnesses and a notary.  

Pursuant to Statute 3B:3-4 "Making will self-proved at time of execution", a will may be simultaneously executed, attested, and made self-proved, by acknowledgment thereof by the testator and affidavits of the witnesses, each made before an officer authorized pursuant to R.S.46:14-6.1 to take acknowledgments and proofs of instruments entitled to be recorded under the laws of this State, in substantially the following form:

I, .........., the testator, sign my name to this instrument this .... day of ......., 20..., and being duly sworn, do hereby declare to the undersigned authority that I sign and execute this instrument as my last will and that I sign it willingly (or willingly direct another to sign for me), that I execute it as my free and voluntary act for the purposes therein expressed, and that I am 18 years of age or older, of sound mind, and under no constraint or undue influence.

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Testator

We,............., the witnesses, sign our names to this instrument, and, being duly sworn, do hereby declare to the undersigned authority that the testator signs and executes this instrument as the testator's last will and that the testator signs it willingly (or willingly directs another to sign for him), and that each of us, in the presence and hearing of the testator, hereby signs this will as witness to the testator's signing, and that to the best of our knowledge the testator is 18 years of age or older, of sound mind, and under no constraint or undue influence.

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Witness

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Witness

The State of................

County of...................

Subscribed, sworn to and acknowledged before me by ................, the testator and subscribed and sworn to before me by ............ and ............., witnesses, this ............. day of.................

(Signed).............................  (Notary / Attorney) with stamp/seal

What happens if the will is NOT self-proving?

If the proper wording is present with the signatures of the testator and of two witnesses, but the will has not been notarized OR the notary paragraph is lacking/contains errors OR one of the witnesses has also acted as the notary, the executor would need to find and contact one of the witnesses and ask them to visit the Surrogate's Court to sign a proof.  

If the will has been properly notarized, but is lacking the proper attestation wording by the witnesses, then both witnesses may need to sign proofs.

This can sound confusing, but we can help.  Please contact the Surrogate's Court for assistance on this process at 908-788-1156.

10. Who becomes the guardian of orphaned minors if there is no will?

Application is made to the Surrogate who usually appoints a person from among the next of kin of the minor.

11. If there is no will, then who gets what?

If someone dies with:	Here's who gets what:
descendants, but no spouse	children inherit everything; if any children are deceased, then their children (decedent's grandchildren) inherit their deceased parent's share
spouse, but no descendants  or parents	spouse inherits everything
spouse and descendants only shared with that spouse	spouse inherits everything
spouse and children from someone other than spouse	spouse inherits the first 25% of intestate property (but not less than $50,000 or more than $200,000), plus 1/2 of the balance; children of decedent share remaining balance of the estate; if any children are deceased, then their children (decedent's grandchildren) inherit their deceased parent's share
spouse and descendants shared with spouse,  but your spouse also has descendants with someone else	spouse inherits the first 25% of intestate property (but not less than $50,000 or more than $200,000), plus 1/2 of the balance; decedent's children inherit everything else; stepchildren do not inherit
spouse and parents (no descendants)	spouse inherits the first 25% of  intestate property (but not less than $50,000 or more than $200,000), plus 3/4 of the balance; parents inherit remaining remainder
parents but no spouse or descendants	parents inherit everything; if no parents survive, siblings of decedent inherit equally; if any siblings are deceased, then their children (decedent's nieces/nephews) inherit their deceased parent's share
siblings, but no spouse, descendants , or parents	siblings inherit everything; if any siblings are deceased, then their children (decedent's nieces/nephews) inherit their deceased parent's share

Descendants are children, grandchildren, great grandchildren, etc. 

12. Do all states have the same probate laws?

No, although New Jersey is one of several states to enact the Uniform Probate Code, most states have their own probate laws. It is a good idea to have your will reviewed when you move to another state.