The New Jersey Wills Act: Can You Draft Your Own Will?

By: Justin M. Smigelsky, Esq.

 

The drafting and execution of a Will is extremely technical and should not be undertaken by a layperson without legal assistance. Although numerous forms of fill-in-the-blank and do-it-yourself Will kits can be found with a few clicks of your mouse, you should never draft a Last Will and Testament without the assistance of an experienced attorney.

Pursuant to statute, every Will must be in writing, signed by the testator or testatrix– or by some other person in his or her presence and at his or her direction – and signed by at least two witnesses to either the signing or the testator’s acknowledgment of the signature or the Will. If a document is not executed in compliance with these requirements, the document may still be valid if the proponent of the document establishes by clear and convincing evidence that the decedent intended the document to constitute his or her Will. A handwritten (or holographic) Will may be valid if it is intended to be a Will and the signature and material portions of the document are in the testator's or testatrix’s handwriting.

New Jersey case law is rife with examples of what can wrong when a testator attempts to draft his own Will. Although the New Jersey Wills Act recognizes holographic Wills as valid, whether witnessed or not, testamentary intent of the holographic Will must be demonstrated by the proponent. The proponent of the holographic Will bears the burden of producing evidence of testamentary intent – a holographic writing prepared without testamentary intent will not be admitted to probate merely because it represents the probable intent of the drafter. Furthermore, even if the holographic Will is admitted to probate, the drafter has most likely created ambiguity or failed to include certain important provisions which will have unanticipated consequences on his or her estate.

In a 2003, the Chancery Division of Monmouth County tackled the issue of whether the completion of a pre-printed form resulted in the creation of a valid holographic Will acceptable for probate. According to the Court, the Wills Act requires only the testator’s or testatrix’s handwritten words be considered and those words must be intelligible apart from the words that are not in the testator’s or testatrix’s handwriting; accordingly, by striking the pre-printed portions of the Will, the purported holographic Will was without meaning and, thus, invalid.

In sum, although it is possible that a self-drafted Last Will and Testament will be admitted to probate, there are far too many problems that could arise if the Will is not properly prepared and executed. The disposition of your estate is far too important to jeopardize by not seeking the assistance of an experienced attorney.

Because estate planning, administration, and litigation require specialized knowledge, you may wish to consult with an experienced attorney if you are planning your estate, or the fiduciary or beneficiary of an estate or trust. Specifically, you may wish to contact an attorney if you have questions regarding the probate process, administration of an estate or trust, fiduciary obligations, preparation of a formal or informal accounting, refunding bonds and releases, and the procedures for filing a formal accounting or exceptions thereto. This article is for information purposes only, and is neither legal advice nor the creation of an attorney client relationship. 

NEW JERSEY ESTATE ADMINISTRATION & LITIGATION: WHAT IS THE AUTHORITY OF AN EXECUTOR OR ADMINISTRATOR?

By: Justin M. Smigelsky, Esq.

Pursuant to New Jersey statute, the duties and power of an executor or administrator commence upon his or her appointment. In the event that the individual acts on behalf of the estate prior to appointment, he acts at his own risk; however, if the acts are beneficial to the estate, such power may relate back in time to ratify said acts.

 

All wills executed after September 4, 1968, confer upon every executor thereunder, in the absence of a contrary provision in the will or in a court order, a wide-ranging set of administrative powers authorizing him or her so to act, provided he or she acts in good faith and with reasonable discretion. Sometime, however, the testator may wish to limit, modify, or enlarge the powers conferred upon the executor – of course, if an individual passes away intestate (without a Last Will and Testament), this is not possible.

Therefore, in accordance with N.J.S.A. 3B:14-23, unless otherwise limited by judgment, order, or the governing document, an executor or administrator shall have several powers including, but not limited to, the following:

• To employ or compensate attorneys from estate funds for services rendered to the estate or to the fiduciary in performance of his or her duties;
• To employ and compensate accountants from estate funds for services rendered to the estate or to the fiduciary in the performance of his or her duties;
• To accept additions to the estate from sources other than the estate of the decedent;
• To invest and reinvest assets of the estate in certain instances;
• To effect and keep in force fire, rent, title, liability, casualty, or other insurance to protect estate property;
• To take possession of, manage, sell, lease, or mortgage property owned by the estate, unless the property or any interest thereof is specifically disposed of;
• To make repairs to estate property;
• To execute and deliver agreements, assignments, bills of sale, contracts, deeds, notes, receipts, and any other instrument necessary or appropriate for the administration of the estate; and
• To compromise, contest, or otherwise settle any claim in favor of the estate or fiduciary, or in favor of third persons and against the estate, including New Jersey Transfer Inheritance Tax, New Jersey and Federal Estate Tax, income and other taxes.

Additionally, the court having jurisdiction over the estate may authorize an executor or administrator to exercise any other power, or to disclaim any other power, if the court determines that such authorization is necessary for the proper administration of the estate.

 

In sum, in administering an estate, it is essential that the fiduciary understand the scope of his or her authority and, as permitted by statute, that the fiduciary retain an experienced attorney in the event he or she has any questions or concerns as to whether he or she is taking an appropriate course of action.

Because estate and trust administration and litigation requires specialized knowledge, you may wish to consult with an experienced attorney if you are either a fiduciary or beneficiary of an estate or trust. Specifically, you may wish to contact an attorney if you have questions regarding the probate process, administration of an estate or trust, fiduciary obligations, preparation of a formal or informal accounting, refunding bonds and releases, and the procedures for filing a formal accounting or exceptions thereto. This article is for information purposes only, and is neither legal advice nor the creation of an attorney client relationship.

 

NEW JERSEY ESTATE ADMINISTRATION AND LITIGATION: THE FIDUCIARY DUTY TO ADHERE TO THE WILL OR TRUST

By: Justin M. Smigelsky, Esq.¹



Pursuant to statute², a fiduciary is under a duty to expeditiously and efficiently settle and distribute the estate of the decedent in accordance with the terms of any probated and effective will and applicable law. Accordingly, a fiduciary appointed to administer an estate – an executor, administrator and substituted administrator with the will annexed, or trustee under a will – must adhere to the directions of the instrument under which he or she was appointed. Any deviation from the testator’s testamentary scheme during the course of the fiduciary’s administration of an estate or trust is made at his or her own peril; therefore, the fiduciary must be cautious if he or she is to take any action not consistent with his or her authority. If the fiduciary exceeds his or her authority under the instrument, he or she may be liable for any ensuing loss regardless of his or her good faith or due care.

In limited circumstances a fiduciary may be permitted to depart from the directions of the governing instrument – if the powers of the fiduciary are not clearly defined (oftentimes, the authority granted is far from clear); if it is impossible or illegal to comply with the directions; if compliance would substantially impair the accomplishment of the purposes of the instrument; or, most importantly, if a court permits departure.³

With respect to seeking the advice and direction of the court, a fiduciary has the right – and duty – to seek the court’s direction if he or she has a substantial doubt as to his or her duties and obligations. Pursuant to Rule 4:95-2, a fiduciary is permitted to bring an action for instructions as to the exercise of any statutory powers or for advice and direction in making distributions. Due to the potential liability for failure to adhere to the terms of a will or trust, a fiduciary should seek advice and direction if he or she is unsure as to the propriety of any action to be taken.

Because estate and trust administration and litigation requires specialized knowledge, you may wish to consult with an experienced attorney if you are either a fiduciary or beneficiary of an estate or trust. Specifically, you may wish to contact an attorney if you have questions regarding the probate process, administration of an estate or trust, fiduciary obligations, preparation of a formal or informal accounting, refunding bonds and releases, and the procedures for filing a formal accounting or exceptions thereto. This article is for information purposes only, and is neither legal advice nor the creation of an attorney client relationship.  

1. Justin M. Smigelsky, Esq. is an Associate with Timothy J. Little, P.C., with offices in Woodbridge and Chesterfield, New Jersey.
2. N.J.S.A. 3B:10-23.
3. In re Cook’s Will, 35 Backes 123 (Prerog. 1945).
4. See In re Matter of Wold, 310 N.J. Super. 382 (Ch. Div. 1998).