Friday, January 6, 2017

New Jersey Estate Administration & Litigation: The Importance of Having a Will

By: Justin M. Smigelsky, Esq.
Shockingly, it is estimated that seventy percent (70%) of adult Americans do not have a Last Will and Testament. There are many reasons why the majority of adults in this country do not have a Will including, but not limited to, laziness, discomfort in pondering and planning for death, misconception as to the cost to have an attorney prepare the Will, and, as is most often the situation, misunderstanding as to the significance of having a Will.

Despite the popular misconception, having a Will is not only important for the elderly or people with wealth – if you are over the age of eighteen (18), you should have a Will, regardless of whether or not you have assets. A few reasons why you should immediately have a Will properly drafted by an attorney on your behalf are so that you may:
  1. Avoid intestacy and New Jersey’s intestate succession laws;
  2. Designate the specific beneficiaries to receive your probate estate upon your death;
  3. Designate specific items or the percentage of your assets to pass to each beneficiary you select;
  4. Designate someone you trust as the executor or executrix of your estate;
  5. Avoid the cost and complication of having an administrator or administratrix appointed to administer your estate;
  6. Avoid the requirement that the fiduciary post a bond in being appointed;
  7. Designate the specific authority you wish for your executor or executrix to have;
  8. Designate a guardian for your minor children;
  9. Address complex family relationships (such as a second marriage) and ensure that your assets are distributed according to your wishes;
  10. Establish testamentary trusts to ensure that distributions are managed properly on behalf of minor or “Special Needs” beneficiaries upon settlement of the estate; and
  11. Address “death tax” consequences as the result of your passing.
Having a Will is also important in allowing the testator or testatrix to plan for his or her funeral. Pursuant to New Jersey statute, a testator/testatrix may appoint a person in his or her Will to control his or her funeral and disposition of human remains. It is not necessary that the appointed funeral representative be the executor/executrix of the Will, and the designated representative may act prior to the Will being admitted to probate. In the event that the decedent died intestate (without a Will) the right to control the funeral and disposition, unless otherwise ordered by the Court, is dictated by statute and could easily result in litigation.

Estate planning is not a one-size-fits-all concept and most estate plans require monitoring and periodic revisions. It is ordinarily suggested that a client modify his or her estate planning documents in the event of any significant life events including, but not limited to, relocation to another state or country; changes in financial circumstances; changes in tax laws; changes in relationships; the death, disability, or incapacity of any designated beneficiary or fiduciary; and marriage or divorce. It is also essential that a client understands the difference between probate and non-probate assets and what specific assets will pass through the Will, as opposed to by law or by contract.

Because estate and trust planning, administration, and litigation requires specialized knowledge, you may wish to consult with an experienced attorney if you are planning your estate or are a fiduciary or beneficiary of an estate or trust. Specifically, you may wish to contact an attorney if you have questions regarding estate planning, 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.

Justin M. Smigelsky, Esq. /  Timothy J. Little, P.C.  –  2017  –  All Rights Reserved
Timothy J. Little, P.C. is a full-service law firm with offices in Woodbridge and Chesterfield, New Jersey. Timothy J. Little, P.C. offers specialized legal assistance to individuals, families and businesses throughout New Jersey including Middlesex County (Old Bridge, Woodbridge, Sayreville, East Brunswick, Spotswood, Perth Amboy, Dunellen, Colonia, Sewaren, Iselin, Avenel, Fords, Keasbey, Menlo Park, Port Reading, South Amboy, Monroe, Edison, Carteret, Cranbury, Helmetta, South River, Milltown, Highland Park, Jamesburg, Laurence Harbor), Monmouth County, Union County, Ocean County, Somerset County, and Burlington County. If you have any questions or concerns regarding estate planning, administration, or litigation, please contact the attorneys at Timothy J. Little, P.C.

Estate Practice Specialties: Drafting of Wills and Trusts, appointment and removal of fiduciaries, probate procedures, intestacy, fiduciary duties and obligations, fiduciary accountings and exceptions, fiduciary compensation, marshaling of assets, insolvency petitions, will contests and disputes, Power of Attorney abuse, ejectment and eviction, Refunding Bonds and Releases, New Jersey Transfer Inheritance Tax (IT-R), New Jersey Estate Tax (IT-Estate)

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