If you don’t have a Will
By Kenneth A.
Vercammen, Esq.
IF YOU HAVE NO
WILL:
If you leave no Will or your Will is declared invalid
because it was improperly prepared or is not admissible to probate:
* State law determines who
gets assets, not you
* Additional expenses will
be incurred and extra work will be required to qualify an administrator
* Possible additional
State inheritance taxes and Federal estate taxes
* If you have no spouse or close relatives the
State may take your property
* The procedure to distribute assets becomes
more complicated-and the law makes no
exceptions for persons in unusual need or for your own wishes.
If no Will, a formal, written Renunciation of the
right to serve as the estate's Administrator signed (in the presence of a
Notary Public) by every person, if any, who has statutory preference over the
applicant to serve as the estate's Administrator. This often means all the
children having to sign the Renunciation.
If all the children Will not sign a renunciation, an
expensive Complaint and Order to Show Cause will have to be filed. At the
Superior Court hearing a beneficiary will have to convince the Judge to appoint
them as the Administrator. Legal fees and court costs over $3,000. They will
then have to pay for a bond usually costing over $1,000. Then later usually a
Formal Accounting has to be filed. All
this could be avoided with a proper Will prepared by an Estate Planning
Attorney usually costing $300-$600 each.
* It may also cause fights and lawsuits within
your family
What happens
if you don’t have a Will or a cheap online form is not accepted:
1. People you dislike or people who dislike and ignore you
may get some of your assets or control assets. State law determines who gets
assets, not you. Many people now prefer to leave assets to grandchildren,
friends or charities rather than non-working children.
2 Additional expenses will be incurred and extra work will
be required to qualify an administrator-Surety Bond, additional costs and legal
fees
3. You Lose the opportunity to work with your attorney to
try to reduce Estate Tax, State inheritance taxes and Federal estate taxes
4. If you have minor
children, the County Surrogate will hold the child’s money until age 18 and it
is difficult and time consuming to petition the Surrogate to release funds for
payment of tuition, medical bills, clothing etc.
5. A Judge determines who gets custody of minor children. A
greedy brother or crazy mother in law could ask the court for custody. The
parent of your children may try to control the assets of your children and not
properly spend the money
6. If you are separated and die without a Will, under the
Uniform Probate Code your spouse will receive 100% of your estate if all the children are from
the same relationship.
7 It probably will cause fights and lawsuits within your
family
When loved ones are grieving and dealing
with death, they shouldn’t be overwhelmed with Financial concerns. Careful estate planning helps take care of
that.
As average Americans, we work 80,000 hours in a lifetime, or
45 to 55 years. In spite of all the
resources and assets we earn, the vast majority of us do not take the time to
create a Will.
Many Americans foolishly without leaving a Will. There are
several reasons for this: fear of death; procrastination; and misinformation
(people presume that only the rich need to have Wills). Whatever the excuse, it is clear that people
would benefit from having a Will.
In the absence of a Will or other legal arrangement to
distribute property at death, problems arise.
The result can be lengthy delays before the rightful heirs receive their
property. And because the state has no
instructions from the deceased, no charitable gifts will be made.
THE FOLLOWING IS A SAMPLE OF A VARIETY OF CLAUSES AND ITEMS
WHICH YOUR ATTORNEY MAY INCLUDE IN A
WILL:
1ST: DEBTS AND TAXES
2ND: SPECIFIC
BEQUESTS
3RD: DISPOSITION TO SPOUSE
4TH: DISPOSITION OF
REMAINDER OF ESTATE
5TH: CREATION OF
TRUSTS FOR SPOUSE
6TH: CREATION OF TRUST FOR
CHILDREN
7TH: OTHER BENEFICIARIES
UNDER 21
8TH: EXECUTORS
9TH: TRUSTEES
10TH: GUARDIANS
11TH: NO SURETY OR BOND
REQUIRED
12TH: POWERS
13TH: AFTERBORN CHILDREN
14TH: PRINCIPAL AND INCOME
15TH: NO ASSIGNMENT OF
BEQUESTS
16TH: GENDER
17TH: CONSTRUCTION OF WILL
18TH: NO CONTEST CLAUSE
A Will must not only be prepared within the legal
requirements of the New Jersey Statutes but should also be prepared so it
leaves no questions regarding your intentions.
WHY PERIODIC REVIEW IS ESSENTIAL
Even if you have an existing Will, there are many events
that occur which may necessitate changes in your Will. Some of these are:
* Marriage, death, birth,
divorce or separation affecting either you or
anyone named in your Will
*Significant changes in
the value of your total assets or in any
particular assets, which you own
* A change in your
domicile
* Death or incapacity of a
beneficiary, or death, incapacity or change in residence of a named executor,
trustee or guardian of infants, or of one of the witnesses to the execution of
the Will
*Annual changes in tax law
MAY I CHANGE MY OLD WILL?
Yes. A Will may be
modified, added to, or entirely changed at any time before your death provided
you are mentally and physically competent and desire to change your Will. You should consider revising your Will
whenever there are changes in the size of your estate. For example, when your
children are young, you may think it best to have a trust for them so they do
not come into absolute ownership of
property until they are mature.
Beware, if you draw lines through items, erase or write over, or add
notations to the original Will, it can be destroyed as a legal document. Hire a good attorney to do it right. Either a
new Will should be legally prepared or a codicil signed to legally change portions of the Will.
SAVE MONEY
Your estate will be subject to probate whether or not you
have a Will and in most cases, a Will reduces the cost by eliminating the
requirements of a bond. With a
well-drawn Will, you may also reduce
death taxes and other expenses. Don’t
pinch pennies now to the detriment of
your beneficiaries. We have attempted to briefly explain in this article
some of the issues, techniques, and decisions involved in Wills, Estate
Planning, and Administration of an Estate.
Because the matters covered are complicated and the Federal and New
Jersey laws frequently change, this
article can only outline some of the many legal issues you should consider.
The proper
preparation of a Will should involve an analysis of the client’s assets, family and his/her
desires. Estate Planning is the process
of examining what will happen to your property when you die and arranging for
its distribution in such a manner as will accomplish your objectives.
The cost of a Will depends on the size and the complexity of
the estate and the plans of the person who makes the Will.
A properly drawn Simple Will without Trust costs
approximately $300.00 to $600.00. It is one of the most important documents you
will ever sign, and may be one of the best bargains you will ever have.
Be sure your Will takes into account the Federal Tax changes
and New Jersey Inheritance Tax changes.
Also, ascertain if your Will is “self-proving”, which would dispense
with having to find the Will’s witnesses after death.
WHAT IS A WILL?
“A Will is a Legal
written document which, after your death, directs how your individually
owned property will be distributed, who will be in charge of your property
until it is distributed and who will
take care of your minor children if the
other parent should die ". You
should remember that the term “property” under the law includes "real
estate as well as other possessions and rights to receive money or items of
value.” Everyone who has at least $3,000
in assets should have a Will. You do
not have to be wealthy, married, or near death to do some serious thinking
about your Will.
ADMINISTRATION OF AN ESTATE
If you are named the executor, you must visit the County
Surrogate to probate the Will. You will
need the following items:
1. The Death
Certificate
2. The Original Will
3. Names and Addresses of decedent's, next of kin and list
of beneficiaries
4. Minimum of $130.00 for Surrogate fees
A NJ state
inheritance tax return must be filed if real estate is left and the tax may be
required on the transfer of real or personal property within eight months after
death.
OTHER ITEMS OF
CONCERN TO BE PREPARED BY YOUR ATTORNEY
-Trusts (and Medicare
Trusts)
-Power of Attorney- to
allow a trusted person to administer
your assets during your lifetime, either upon disability or now. We recommend
you have a new Power of Attorney drafted every 5 years, Never rely on a cheap
online forms.
-Living Wills- to state
your wishes concerning medical care in
the event of your serious illness
Kenneth A.
Vercammen is a Middlesex County trial attorney. He is author of the ABA book
“Wills and Estate Administration”. He who has published 125 articles in
national and New Jersey publications on litigation topics. He has been selected to lecture to trial
lawyers by the American Bar Association, New Jersey State Bar Association and
Middlesex County Bar Association.
Call our
office to schedule a confidential appointment 732-572-0500
