Making a Will
1. Why is it important to make a will?
A will is a revocable transfer to take effect on death. Wills have been with us since the first days of recorded history. What you put in your will depends on what property you have, whom you want it to go to, the dynamics of your family, and soon.
2. What are the seven essential elements to create a valid will?
To be valid, your will doesn’t have to conform to a specific formula. However, there are certain elements that usually must be present.
- You must be of legal age to make a will. This is 18 in the State of New Jersey
- You must be of sound mind. This means that you should know you are executing a will, know the general nature and extent of your property, and know who are the people who should ordinarily receive estate. This includes your spouse, descendants and other relatives that would ordinarily be expected to share in your estate.
- The will must have a provision that disposes of property, and it must also indicate your intent to make the document your final word on what happens to your property. In simpler terms, your will must indicate that you really intended it to be a will.
- The will must be voluntarily signed by the testator.
- A formal will must be properly executed. This means that it contains a statement at the end attesting that it is your will, the date and place of signing, and the fact that you signed it before witnesses, who then also signed it in your presence–and watched each other signing it. New Jersey allows a self-proving affidavit, and this form eliminates the necessity of having the witnesses testify that they witnessed the signing, and the affidavit is proof enough.
If your will doesn’t meet these conditions then it might be disallowed by a court, and your estate would then be distributed according to a previous will or under New Jersey’s intestacy laws.
In recent years, a number of books and computerized will kits have come on the market which claim to enable you to make your own will. These books normally cost $20 or more, and the cost of a kit $70 or more. These kits are basically garbage and should be avoided. There are many lawyers who will prepare estate plans and wills for an affordable fee. Most computer program estate plans and kits are not just garbage and they should not be used.
3. What are the important clauses that should be in my will?
There’s no set formula for what clauses should be in a will. However, there are some subjects that should be addressed in a will. Below are the more common clauses of a basic will;
a. Funeral expenses and payment of debts
Your debts don’t automatically disappear once you die. Your estate is responsible to pay for your debts once you die, and your estate is still liable to pay for them. If your debts exceed your assets, then New Jersey state law will prescribe the order in which the debts must be paid by category. Funeral expenses and expenses of administration receive first priority.
b. Forgiveness of Debts
You can also forgive any debts someone owes you by saying so in your will.
c. Gifts of personal property
It is critically important to carefully identify all recipients of your estate, including their address and relationship to you. Don’t just leave household property to someone, because that category is vague enough to spark a dispute in court, or at least in the family. Spell out the items stereo equipment, clothing, books, and cash. In general, it is much simpler for your executor if you leave your property to people in broad but specific categories (“all my furniture”) rather than passing it on it piece-by-piece (“my kitchen table”) to many different people. If you want specific gifts of sentimental value to go to certain people, then you should consider giving them to those people before you die.
d. Gifts of real estate
Most people prefer that their spouses receive the family home. If the home isn’t held in joint tenancy with rights of survivorship, then you should have instructions about what will happen to it in your will. It is possible to give a loved one a life estate in real property. This is giving something to a person, to use for as long as he or she lives but that reverts to your estate or passes to someone else after he or she dies. It’s a way of assuring, for example, that your wife will have the use of your house while he lives, but that it will pass to the children of your first marriage after he dies.
e. Executors
It is very important to spell out certain powers the executor can have in dealing with your estate: to buy, lease, sell and mortgage real estate; to borrow and lend money; to exercise various tax options. Giving the executor this kind of flexibility can save months of delay and many dollars by allowing him or her to cope with unanticipated events.
f. Residuary clause
This is also one of the most crucial parts of a will. The residuary clause covers all assets that are not specifically disposed of in your will. Most people will probably accumulate assets after you write your will, and if you haven’t specifically given an asset to someone, it won’t pass through the will unless you have a residuary clause. The residuary clause distributes assets that you might not have anticipated owning at the date of your death.
g. Testamentary trusts
You can set up a testamentary trust in your will, or have your will direct funds from your estate into a trust you had previously established. You would normally do so in a separate clause in your will.
h. What if clause?
You should always try to figure out where a gift would go if something unexpected happened. What if one of your beneficiaries dies before you do? In that event, the gift you made to the dead person is said to lapse, and the gift goes back into your residuary estate, to be distributed to whomever you made the residuary beneficiary.
4. How is a will executed?
After your will is drafted and proofread, you still must have the will formally executed. This requires two witnesses to verify that you signed your will. In New Jersey, the testimony of at least two witnesses is needed as proof of the will’s validity. However, a will which is formally executed with the signatures notarized and a self-proving affidavit attached is considered to be self-proved. A self-proving will may be admitted to probate without testimony of witnesses or other proof.
5. Who should you pick to be your witnesses?
The witnesses should have no potential conflict of interest. This basically means they should absolutely not be people who receive any gifts under the will, or who might benefit from your death. You needn’t bring them with you to your lawyer’s office; typically, some employees of your lawyer will to witness the signing. You should sign every page of the original. The witnesses will observe you sign the will and then sign a statement attesting to this.
6. Where should I keep my will after I have executed it?
Your will should be kept in a safe place, such as your safe deposit box or your lawyer’s office. You should also keep a record of other estate planning documents with your will, such as a trust agreement, IRA’s, insurance policies, income savings plans such as 401(k) plans, government savings bonds (if payable to another person), and retirement plans.
7. What should I do if I lose my will?
You should have your lawyer draw up a new will as soon as possible, and execute it with all the necessary formalities. If your family situation, state of residence, or income hasn’t changed, then your lawyer should be able to use copies of your lost will as a guide.
If you do keep it in a safe deposit box, you should make sure to provide that someone else (and certainly the executor you name) can get at the will when you die. Tell your executor and your beneficiaries where the will is located, and make sure your executor, or someone you trust, has authority and a key to open the box after your death. Many estates have gone through long probate delays because the bank didn’t have permission to let anyone open the safe deposit box except the person who had just died.
It’s perfectly acceptable to store copies of the will in your home. Personal papers such as your birth certificate, citizenship records, marriage certificate, coin collections, jewelry, heirlooms, medals and so on may be kept in your safe deposit box. Financial records, like securities, mortgage documents, contracts, leases and deeds are also safe to store.
8. What are the different types of wills?
There are several different types of wills. Here’s a brief overview of the type of wills that are commonly used by New Jersey-ites.
a. Simple will. A will that just provides for the outright distribution of assets for an uncomplicated estate.
b. Testamentary trust will. A will that sets up one or more trusts for some of your estate assets to go to after you die.
c. Pourover will. A will that leaves some of your assets in a trust that you had already established before your death.
d. Holographic will. A will that is unwitnessed and in the testator’s handwriting.
e. Joint will. One document that covers both a husband and wife
f. Living will. A living will is not really a will at all. Instead, a living will is often executed at the same time you make your will. This document tells doctors and hospitals whether you wish life support in the event you are terminally ill or, as a result of accident or illness, cannot be restored to consciousness.
9. What is a living trust?
Some people believe that to avoid probate they should not have a will and should instead use a living trust to transfer property between generations. A living trust can be a very useful part of estate planning. However, using a living trust alone can’t accomplish many of the most important goals of estate planning. For example, you may have to have a will to name a personal guardian for your children, even if you have a trust. And even with a living trust, you’ll need a simple will to dispose of property that you didn’t put into the trust. It is important to emphasize that the probate process in New Jersey is also no longer the costly, time-consuming nightmare that it used to be.
10. What state’s law would apply to my estate?
The laws of the state where your primary home is located determines what happens to your personal property such as your car, stocks, cash. The distribution of your real property is governed by the laws of the state in which the property is located. If you do own homes or property in different states, then it is a good idea to make sure that the provisions comply with the laws of the appropriate state.
11. Why is having a joint will such a bad idea?
Both spouses should execute separate wills. A joint will generally provides that each spouse’s property will go to the other one, and then spells out what will happen to the property when the second person dies. Because both parties have to agree to modify such wills, they often aren’t revised as frequently as they should be, whether because of family disagreements or just other factors. Joint wills can keep the survivor from using the property as he or she wishes, and they don’t allow for circumstances that change after the will was made, and may be impossible to revoke.
