There’s A Will . . . There’s A Way!
Almost everyone owns something . .
. and therefore, has an “estate”. It is your right to select the person(s)
to whom your estate will go upon your death. There are several ways
this can be done:
• Create a trust
• Create a joint tenancy
• Draw a will
- or -
Do nothing and allow the laws to control how your estate will be distributed!
What Is A Will?
It is a legally enforceable written document appointing an
executor and/or disposing of a person’s estate, which takes effect on being
probated after a person’s death.
Remember . . . It frequently costs more not to have a will.
If your estate requires review by the courts, if there is a disagreement
among the heirs as to who is to be the administrator or any other
disagreement over the estate, the costs of litigation will far exceed
the cost of having a valid will drawn.
In the absence of a will, another added cost
is that of a bond which could be required with a court appointed administrator.
Avoid Confusion And Delays - Have
Since a will is one of the most important
documents you will ever sign, it is advisable to have the assistance
of an attorney in its preparation.
This booklet has been prepared for your use
with our compliments. We suggest that you read it carefully. It gives
a brief outline of the New Jersey laws relating to inheritance and
the various types of wills valid in New Jersey.
By Drawing A Will You Can...
• Decide and direct the distribution of your property.
• Select the person you want to administer your estate.
• Have the estate administered in an orderly manner.
• Avoid the expense of a bond for an administrator. (NOTE: No bond
is required for a surviving spouse of a decedent who died on or
after January 1, 1985 providing the surviving spouse would inherit the entire
• Prevent your surviving spouse or children from squandering the estate,
by providing that you children are not to receive their entire
share until they are older than eighteen.
• Spread distribution of your estate over a period of years.
• Take advantage of the various tax laws so as to reduce taxes.
• Appoint a guardian for your minor children, providing you are the
surviving parent at the time of death.
In New Jersey, any person 18 or more years
of age who is of sound mind may make a will. Physical incapacity or
infirmity does not disqualify a person from making a will.
The will must be in writing. As of this
date, oral or video wills are not valid in New Jersey.
The will, to be properly executed, must:
• Be signed by the testator or by some other person in his/her presence
and at his/her direction.
• Be signed by a least 2 persons, each of whom witnessed either the
signing or the testator’s acknowledgement of his/ her signature
or of the will.
Exception: If the material provisions
of the will are wholly in the handwriting of the testator, no witnesses
are required (although it is advisable to have two witnesses). This
is called a holographic will. If there are no witnesses or only one,
the instrument can be determined to be a valid will upon proper proof
being presented to the Superior Court on notice to all the intestate
• The best place to keep your original will
is in a safe deposit box and make sure you tell your executor of
Of Tangible Personal Property By Separate Writing
A will may refer to a written statement
or list to dispose of items of tangible personal property, (e.g. jewelry/collections),
other than money, evidence of indebtedness, documents of title and
securities or items used in trade or business.
The list must either be in the handwriting
of the decedent or signed by the decedent, and must describe the items
and devises with reasonable certainty.
The list may be prepared before or after the
execution of the will and may be altered by the testator at any time.
Of An Executor/Administrator An executor or administrator bears
the responsibility of carrying out the instructions in the will. All
of the assets of the decedent are to be collected and protected. Valid
debts and taxes are to be paid if there are sufficient funds; tax
returns, where applicable, are to be filed and taxes paid; all proper
parties are to be notified of the probate of the will; final distribution
is to be made to the beneficiaries and heirs.
Commissions: An executor or administrator
is entitled under the law to take a 6% commission on any income received
during the course of the administration and 5% on the gross corpus
receipts up to $200,000; 3 1/2% on amounts between $200,000 and one
million; 2% on amounts over 1 million.
If there are two or more fiduciaries, an additional
1% may be taken.
Of Last Instructions
Few persons expect to die when they do,
and therefore relatively few leave their affairs in perfect order.
Those who administer an estate frequently find
themselves without necessary information. To make their job easier,
it is advisable to give your executor or attorney a letter of last
instructions. This letter is separate and apart from your will, and
should be placed in an envelope separate from your will.
This letter should contain, at a minimum the
• Name, addresses and phone numbers of closest
family members and other persons to be notified of your death.
• Funeral and burial instructions, cemetery
location and deed.
- your will, deeds, mortgages and the like
- automobile registration
- birth and similar certificates
- safe deposit box and key
- check book, statements of account, passbook, stock certificates
- insurance policy and agent’s name
- last employer’s name and address
- retirement, pension, social security information
- Veterans discharge papers
- income tax returns
- credit cards and statements
Probate of Will (Proof of Valid Execution)
To probate a will, one of the subscribing
witnesses must appear in the Surrogate’s Office and sign a deposition
relating the facts surrounding the execution of the will. If a
witness does not reside in Atlantic County, the Surrogate arranges
for the witness to be deposed in the jurisdiction in which he or
Exception: If the will is “self-proved” the
above procedure is not required.
A witnessed will may be made self-proving by
attaching to the will affidavits of the witnesses and an acknowledgement
by the testator or his/her signature. The acknowledgement and affidavits
must be made before an officer authorized to take acknowledgements
pursuant to New Jersey statutes and must be in the form prescribed
by law. Wills which are self-proved can be admitted to probate without
the appearance of one of the witnesses to prove the will.
Wills may be self-proved at the time of formal
execution or at a subsequent time using this procedure.
Wills may be self-proved using different witnesses
than on the original document, so long as the proper acknowledge-
ment is made by the parties involved.
Has any child been born or adopted after
you executed the will? If so, such child would receive a share in
the estate equal to his share if you had died without a will. (And
if your will had, for example, left everything to your spouse, the
after-born child would inherit part of the amount which you wanted
your spouse to inherit).
Has any person to whom you made a testamentary
gift died? If so, you might want to change the name of the beneficiary
by way of a codicil. If not, the gift would probably become a part
of your residuary estate.
Has your named executor died, moved, or in
any way become unavailable? If so, and no alternate has been appointed,
Have you been divorced since the execution
of your will? If so, any disposition to your former spouse and appointment
of spouse as executor is invalidated unless the will explicitly states
Have all of the witnesses died . . . or become
unavailable? If so, secure new witnesses and, if possible, execute
a self-proving affidavit.
Have tax laws changed so as to affect your
estate? If so, have your will rewritten to take advantage of the new
Some Points To
• A person must survive a decedent by
120 hours to inherit from said person
• Your will is not recorded prior to your
death! No one need know of it nor its contents before your death,
unless you so desire. However, once the will is probated it is
a matter of public record.
• Your will is of no effect during your
lifetime...it only affects the property you own - in you own name
individually - as of the date of your death.
• Your will is not a fixed document . .
. you can, at any time during your lifetime, change it by drawing
a later will, or by burning it, canceling it, tearing it, obliterating
it or destroying it in any way with the intent of revoking it or
any part of it.
• Your will is viable and valid until legally
changed or cancelled.
Best Way is to have a new will or a
Codicil must be executed with the same
formalities by which a will is executed and must refer to the will
by date and ratify the will.
Do not make alterations on the will itself
or its validity may be destroyed.
You Die Without A Will (Intestate) prior to February 27, 2005*
Your property, real and personal, is distributed
according to the intestacy laws.
The share of a surviving spouse depends
upon what other of the decedent’s heirs also survive.
If a Decedent left a Surviving Spouse and:
• No Issue or Parent: Surviving spouse receives
• Issue of Surviving Spouse and Decedent:
Surviving spouse receives $50,000 and half of the remainder. Issue
share the other half.
• No joint Issue but a Parent or Parents:
Surviving spouse receives $50,000. Surviving spouse and parents
share the remaining estate 50-50.
• One or more Issue not Survivor’s Issue: Surviving
spouse receives half of the estate and decedent’s issue share other
*If You Die Without A Will on or
after to February 27, 2005 contact the Surrogate's Office
at (609) 645-5800
Left No Surviving Spouse
• Issue of Decedent Survive: Issue receive
• No Issue Survive - Parent(s) Survive:
Parent(s) receive entire estate.
• No Issue or Parent(s) Survive: Issue of parents
(decedent’s brothers and sisters) receive entire estate.
Further Distribution is Set Forth In The Statutes.
• If decedent was single (no spouse, no issue):
Parent or Parents Survive: Parents receive
No Parent: Parent’s issue take all (brothers
and sisters of decedent)
Further distribution is set forth in the statutes,
but if no issue of grandparents survive, the State of New Jersey receives
entire estate. The following chart sets out the heirs-at-law who are
within this limitation:
Proceedings (When there is no will)
The closest living intestate heir of the
decedent is entitled to be appointed administrator of the estate.
The order of priority to act as follows:
First Entitled: Spouse of deceased
Next: Children of deceased
Next: Parents of deceased
Next: Brothers and sisters of deceased
Next: Other intestate heir closest in degree
Any person who is first entitled to serve may
renounce the office by filing a Renunciation with the Surrogate. Once
the Renunciation is filed, the person(s) next in line may apply and
the person or persons so entitled to serve may be appointed by the
The applicant should bring with him/her
to the Surrogate’s Office when application is made:
• Death certificate (certified copy)
• An estimate of the approximate value of estate and of the debts
and taxes due
• At least $40.00 for Surrogate's costs
Of Administration Are Not Required
Administration is not required where the
total value of the real and personal assets of the estate of one dying
without a valid will does not exceed $10,000.00 and the decedent leaves
a surviving spouse. In such case, the surviving spouse, upon the execution
of an affidavit before the Surrogate, is entitled absolutely to such
assets without administration and the assets up to $5,000.00 shall
be free from the lien of all debts of the decedent. (N.J.S.A. 3B:10-3)
Where the total value of the real and personal
assets of the estate of an intestate will not exceed $5,000.00 and
the intestate leaves no surviving spouse, and one of his/her heirs
obtains the consent in writing of the remaining heirs, if any, and
executes before the Surrogate an affidavit, he/she shall be entitled
to receive the assets of the intestate for the benefit of all the
heirs and creditors without administration or entering into a bond.
If the affiant is domiciled outside the state
of New Jersey, the Surrogate may authorize, in writing, execution
of the affidavit before a proper authority in the other jurisdiction.
Remember - This procedure
is only available in cases where no valid will exists.
or institution appointed by the court to manage and distribute the
estate of person who dies without a will.
Beneficiary: person named to receive
property or benefits.
Bequest: gift of personal property by
Codicil: an addition or supplement made
to change or add a provision to a will.
Decedent: a deceased person.
Devise: a gift of real estate by will.
Estate: everything a person owns, all
real and personal property.
Executor/Executrix: a person or institution
named in the will to carry out the provisions and directions of the
Heir: those persons who are entitled
under the statutes of intestate succession to the property of a decedent.
Intestate: to die without a valid will.
Issue: a person’s direct descendents.
Legal Guardian: a person who acts in
a fiduciary capacity for a minor or mental incompetent.
Personal Property: intangible property,
such as: stocks, bonds or bank accounts, and tangible property, such
as: furniture, automobiles and jewelry.
Probate: official proof of the genuineness
Surrogate: a judicial officer who has
the jurisdiction over the probate of wills and administration of estates.
Testator/Testatrix: the person who makes
Testate: to die leaving a valid will.
Trust: property owned and managed by
one person for the benefit of another.
Will: a legal declaration of the manner
in which a person wishes his/her estate to be divided after death.
Inheritance Tax Rates (Applicable to estates of decedents dying on
or after January 1, 1985)
Husband/Wife: After January 1, 1985, transfers
are totally exempt.
Class A: Beneficiaries: Father, mother, grandparents,
natural or legally adopted child or issue of said child or decedent
step-child and certain mutually acknowledged children.
No tax on transfers to any of this class if
decedent died on or after July 1, 1988.
Class C: Brother or sister of a decedent, spouse
of a child of a decedent: $25,000 exemption of transfers if decedent
died on or after July 1, 1988. Rate starts at 11% on amounts over
Class D: Any other transferee, distributee
or beneficiary (other than those entirely exempt such as charities
and government agencies listed in class E) - $499.00 exempt, rate
starts at 15%.
How do I prepare a will?
You can prepare your will using our sample form. Click the links below to view sample wills.
You may also ask an attorney to prepare a will for you. If you do not have an attorney or do not feel comfortable with him or her...
Ask a friend or relative to refer you to an attorney in whom they have confidence.
Contact the Atlantic County Bar Association for a referral to an attorney who specializes in preparing wills at: www.atcobar.org or call (609) 345-3444.
If you are an Atlantic County resident, age 60 years or older, or have a disability, you may qualify for free legal. Contact South Jersey Legal Services at www.lsnj.org or call (609) 348-4200 for more information.