A will is a written instrument that takes effect when you die. It controls who gets your property (“beneficiaries”), who will be the guardian of your children, and who will administer your estate (“personal representative” or “executor”).
If you do not have a will, your home state has a default plan in place for you. By creating a will, you are opting out of your state’s default plan.
Although you can opt out of your state’s default plan, you cannot disinherit your spouse. If your will completely excludes your spouse, your spouse is entitled to an “elective share.” In New Jersey, the elective share is one-third of the estate. In Florida, the elective share is 30%.
In order to create a will, you must be at least eighteen (18) years old and be of sound mind. Your will must be signed in the presence of two witnesses and notarized. Your witnesses should be disinterested in your will, meaning they are not beneficiaries.
Whenever you have a major life change, such as birth of a child, divorce, or death in the family, you should review your estate plan to be sure it still works as intended.
If you want to change your will, making an entirely new one is the preferred method. You have the option to make a codicil, but this leaves your will susceptible to challenge. The probate process is public, so any changes you made in your codicil will be out in the open. A new will reduces the risk for a disgruntled, disinherited family member to challenge your will.
Most people do not realize that all wills need to be probated through court and it is open to the public record. The court process can be expensive (depending on your state), time consuming, and intrusive. The executor, the court, and the lawyer are all entitled to payment. A bond must be posted that represents the value of the property in the estate. Notice must be advertised to creditors to determine if the decedent has any unpaid debts. If there are contentious family members, they can challenge the will and cause severe delays. Your personal representative or executor will have to gather all of your assets, wait approximately 9 months for creditors to lodge claims, and then distribute the remainder. If your loved ones will be compromised by waiting 9 months before they can access money, a will might not be your best choice. If you are at all concerned about these issues, you might want to set up a trust instead.
If you have a life insurance policy, it is important that you check beneficiary designations. It is best that your life insurance policy pass directly to a named beneficiary, rather than to your estate. If your life insurance policy passes to your estate, it is subject to probate, and the funds are available to creditors. When the insurance proceeds instead go directly to a beneficiary, bypassing the probate estate, the money belongs to the beneficiary and avoids the decedent’s unpaid bills. This will maximize the amount of money passing to your loved ones. We are committed to coming up with comprehensive solutions to maximize any size of inheritance (big or small) and securing your plan to avoid family conflicts down the road.
2640 Route 70, Building #4
Manasquan, NJ 08736