Wills

You are married and you own everything jointly with your spouse.

You don’t have much in the way of assets.

All of your assets are beneficiary designated – retirement accounts, life insurance policies.

All of your assets are jointly owned.

All of your assets are in a trust.

The above scenarios may lead you to think that you don’t need to have a Last Will and Testament.  But, consider these scenarios –

You and your spouse are killed in a tragic accident while together.

You, as a married individual, are traveling alone and are killed in a tragic accident.

You, as a single person, are killed in a tragic accident.

Who will be the beneficiary of the proceeds of a possible lawsuit settlement resulting in your death?  Without a Last Will and Testament, your state of residency will determine who will receive the settlement.  It may not always be your spouse if you are married.  Would you be comfortable with this?  Also, who would take care of administering your estate?  Here again, your state of residence will decide who has priority to handle your estate. 

You may think that you don’t need to spend money to have your estate planning completed by an attorney but it may be one of the best investments you make.  Laws change, situations change – divorces, second marriages, new children become part of your family, you become disabled, one of your beneficiaries has special needs, and the list goes on.  Inadequate estate planning could result in paying taxes that could otherwise have been avoided.  Inadequate estate planning could result in a disabled beneficiary losing benefits.  If you are in a second marriage, assets could be distributed to children as well as stepchildren. 

Don’t leave your estate to chance.  Be proactive.  Even planning your funeral could be impacted without proper planning.  Is this what you would want?

When it comes to estate planning, “it’s not just about valuables, but about values; not just about principal, but about principles.” [Dr. Barry Baines, “Ethical Wills, Putting Your Values on Paper”]  Transferring values and ideals, in addition to your monetary wealth, is an important part of leaving a legacy.  In other words, what your children and grandchildren inherit should be more than just real estate, the family business, or stocks and bonds, but the value of hard work, respect for family traditions and recognition of one’s heritage.

Creating an estate plan that serves your unique needs and reflects your beliefs and values requires a group of skilled advisors from a variety of disciplines.  Sound estate planning is built upon a multidisciplinary approach among a group of professionals that work together as a team, with clear communication, established roles and a desire to work together cooperatively and collaboratively.

Our professionals are well versed in working with accountants, financial advisors and bankers to provide each client the optimal planning experience.  We pride ourselves in our holistic approach in planning for each client’s goals and circumstances to reflect individual values, principles and objectives.  We appreciate the accounting, investment and banking professionals with whom we have had the privilege to work and look forward to expanding and building those relationships.

WOW – who would have ever thought that an electronic Will would become acceptable to probate (file of record with the court as being the decedent’s intentions).  Yes, we do so much electronically, but a Will, which back in the day couldn’t have an erasure on it (and I am talking way back in the day before memory typewriters and in the days of carbon paper – if you even know what that is).  Perhaps I am dating myself, but I typed many a Will only to get to the last line of the paper (and it was legal size paper) to make a typo and have to start that page all over again.  OK, so back to current times. 

The Courts are being faced with validating electronic Wills – most of which don’t contain statutory language.  From what I have read, some of the electronic Wills have been admitted, but others have not.  Here are a few stories I have seen about electronic Wills.

A Will was dictated by the testator to a sibling who typed the same on a tablet device.  The testator signed the Will using a stylus and there were two witnesses who signed.  While the Will was not notarized, it was admitted as it was in writing and signed. 

There was a case in Australia where a testator prior to committing suicide created documents on his phone and labeled one to be a Will.  After consideration, the Court found that the Will was admitted to probate. 

Then there are video Wills.  These have been around longer than tablet devices and mobile phones and have been successful in the Courts admitting them to be valid Wills in certain circumstances.  People unable to sign their names but able to speak their intentions have had successful video Wills probated.  The testators must clearly state that the video is intended to be their Will. However, nowadays getting a video Will probated can be more challenging than an electronically written Will. 

The Uniform Electronic Transactions Act which was approved in 1999 allows for the transaction of business electronically.  Almost all states have adopted the UETA, but there is an exception for Wills and testamentary trusts that requires each state to enact legislation to allow for electronically signed Wills to be admitted.  This has led to the Uniform Electronic Wills Act which was approved in July 2019.  This Act continues the traditional formalities of a Will – a writing, a signature and attestation, with some adaptations.  The primary requirement is that a Will be “a record readable as text at the time of signing”.  Further, the electronic Will must be signed in the physical presence of witnesses (per individual state requirement). 

If an individual executes an electronic Will, but later wishes to revoke the same by a subsequent document, this may present challenges.  Since there is no hard copy of the original, this may lead to court involvement to determine the testator’s intent. 

For many years, Wills have been self-proving – meaning that the signature of the testator (in many states, but not all)  and the witnesses are notarized, which eliminates the need for the witnesses to come forward when the will is probated to “prove” their signatures.  There is currently a division among states as to whether the self-proving affidavit can be signed by the witnesses simultaneously and incorporated into the electronic document.  There is also discussion as to the validity of the electronic Will when the testator is physically located in one state at the time of execution but changes residency, prior to death, to another state.  This definitely conflicts with the expression of Wills set forth on paper and signed in ink that “valid where made, valid everywhere”. 

This is a topic that will likely become more commonly discussed as we journey toward being a “paperless” society. 

You have now prepared your Last Will and Testament and have named your Attorney-In-Fact in your Power of Attorney, but what about your health? Who will take care of you and your medical needs if you become incapacitated? That is precisely what a Living Will and Advance Directive will provide.

A Living Will and Advance Directive is a document that provides instructions regarding your care during the latter stages of your life. Similar to a Power of Attorney, you will select an individual to serve as your Attorney-In-Fact in this regard. There is also an important decision you must make within the document, and that is the decision regarding whether you would like to continue life sustaining treatment (life support) should the moment arise when doctors have determined there is no more hope for recovery. If that moment should arise, you will not be able to communicate with doctors what you would like done with regard to life support. However, if you have a Living Will and Advance Directive, doctors will be able to clearly see your decision that was made when you were mentally competent and abide by your choice.

A Living Will and Advance Directive also has other benefits. In addition to allowing you to make your own decisions regarding life support, it also will clearly show your intentions and prevent any arguing or disagreements about what you would want should that moment arise. This takes the difficult decision of cutting life support out of the hands of loved ones who may not be in the best mental or emotional state to make that decision. Further, loved ones may disagree and what they believe should happen, potentially leading to arguments and hurting family relations.

Finally, a Living Will and Advance Directive can also include a Healthcare Power of Attorney, which, as mentioned, will give your Attorney-In-Fact authority to make medical decisions for you should you be unable to make your own medical decisions. It also allows your Attorney-In-Fact to speak for you in regards to health care matters. It goes without saying that your Attorney-In-Fact should be someone who you not only trust with your healthcare needs, but also someone who has the emotional and mental ability to make potentially difficult decisions that are ultimately in your best interest. For that reason, it may be appropriate to appoint a trusted person outside of your family to be your Attorney-In-Fact.

The Last Will and Testament, Power of Attorney, and Living Will and Advance Directive are three vital documents that should be a part of everyone’s estate plan. If you do not have either or any of these documents, it is prudent to consider having them created. Being proactive now when it comes to not only your future, but also your loved ones future can help prevent many headaches down the road.

Now that you have considered all of the various possibilities that you may amass a sizeable estate when you pass away, you then must consider to whom you would like the assets to pass to and, just as important, who will administer your estate.

First, the decision of who will inherit from your estate. A Last Will and Testament will dictate to whom your assets will pass to after your death. This provides you with all of the power to tell your loved ones after your death “who gets what” or “who does not get what”. This saves time and money after your death and saves loved ones from potentially fighting over your most prized possessions.

If you have children, you may consider where each child is in life or where you anticipate them to be at the time of your passing. Is one child better off than the other? Does one child need more support due to an incapacity issue? Or do you simply not have a relationship with one child and would not like that child to inherit from your estate? These are all important questions to ask yourself when considering estate planning documents, and each of them can be addressed in your Last Will and Testament. Do not leave it to the State to distribute your assets when you have the ability to control that yourself.

The Last Will and Testament governs the distribution of probate assets as opposed to non-probate assets. What is the difference? Non-probate assets are assets that already have a listed beneficiary on it for the assets to be distributed to upon your death. For example, life insurance, IRAs, joint bank accounts with rights of survivorship, payable on death accounts, are all types of non-probate assets. Each of these accounts will generally have an individual (beneficiary) already listed who will receive the assets of that account upon your death. However, if no beneficiary is listed, then the estate is the presumed beneficiary of the asset and it will then become a probate asset and will be distributed according to your Last Will and Testament.

In addition to cash assets, you may also consider your home if you own one. Who would you like to inherit your property? Do you even want anyone to inherit your home? Or would you like it to be sold first and distribute the proceeds? Again, these all can be addressed in your Last Will and Testament. This will take away any uncertainty with what will happen to your property after you pass away. You can rest assured that your assets will be distributed to the right people in the manner in which you desire when you pass.

When you have finished choosing who to leave your specific property to, what happens to the rest of the assets in your estate? The remaining assets, such as bank accounts, in your estate that do not have a listed beneficiary will pour into what is called the “residue” of your estate. You have the ability to direct how your residuary estate is distributed and to whom it will be distributed.

After considering what you have and to whom the assets will be distributed to, the crucial decision needs to be made as to who will be responsible for administering your estate. This should be person that you trust to be able to gather your assets and contact all of the beneficiaries of your estate in a timely manner to administer those assets from your estate. This person is called the “Executor” of your Estate. The Executor will also be responsible for the payment of any death taxes your Estate may owe as a result of your death and will be responsible for filing income taxes for your Estate as well. You may also list successor executors as well. These individuals will step in for your initially listed Executor should he or she choose not to serve as your Executor or becomes incapacitated and is no longer able to serve as Executor.

A will gives you great power and discretion to see that the proper people receive the assets of your estate. If you have life milestone moments coming up or do not have one, consider seeing an attorney to have your Last Will and Testament drafted.

One of the most important legal documents an individual can ever execute is his or her Will. Until recent years, it was a formal writing prepared by a lawyer to insure that one’s assets were passed to his or her heirs. Yet over the past few decades, alternative planning methods have arisen. Moreover, New Jersey law has begun to allow for the admission of forms that do not comply with statutory law as Wills. Thus, the purpose of this article is to review what constitutes a Will and how imperfect documents might nevertheless be admitted to probate.

At the outset, it should be stressed that individuals should have their Wills prepared by competent counsel. Those who use unqualified lawyers, computer programs and trust mills for their estate planning often trigger disaster for a variety of reasons. These include inadvertently disinheriting loved ones, allocating one’s estate among the wrong beneficiaries and failing to recognize the interrelationship of Wills with non-probate assets. Some of these deficiencies can be corrected though.

Historically, the procedural requirements to execute a Will have been very strict. N.J.S.A. 3B:3-2 states for a Will to be valid it must be in writing and executed by the testator in the presence of two witnesses. Wills that did not meet these requirements simply were not admitted to probate except for holographic Wills (those entirely in a decedent’s handwriting) which, though, required an order of the probate court.

In 2005, New Jersey statutory law was modified to allow for the possibility of documents to be accepted into probate that do not conform with the traditional will statute as valid testamentary writings. Specifically, in relevant part, N.J.S.A. 3B:3-3, entitled Noncompliant execution; Clear and convincing evidence of intent, states, “Although a document or writing added upon a document was not executed in compliance with N.J.S.A. 3B:3-2, the document of writing is treated as if it had been executed in accordance with N.J.S.A. 3B:3-2 if the proponent of the document of writing establishes clear and convincing evidence that the decedent intended the document or writing to constitute: (1) the decedent’s will…” This represented a substantial change in the State of New Jersey’s probate laws.

This legislation created what is commonly known as the “doctrine of substantial compliance”. Since then, a number of cases have been decided to define this concept. The initial case in this area was In the Matter of the Probate of the Alleged Will and Codicil of Macool, Deceased, 416 N.J. Super. 298 (App. Div. 2010). In that case, Louise Macool sought to change her Will after her husband died to expand the residuary beneficiaries from her seven stepchildren to two nieces as well. She spoke with her attorney and he dictated same in her presence. However, she died one hour after leaving the attorney’s office. The court found that clear and convincing evidence existed to demonstrate that Louise Macool wanted to change her testamentary plan and include her two nieces. However, the draft will was not admitted to probate. Specifically, the Court held that her untimely death prevented her from: (1) reading the draft will prepared by her attorney; and (2) conferring with her counsel after reviewing the draft document to clear up any ambiguities, modify any provision or express her final assent to the rough draft. Yet, in clarifying N.J.S.A. 3B:3, the Appellate Division held that an unexecuted or defective writing may be admitted to probate as a Will if there is clear and convincing evidence that: (1) the decedent actually reviewed the document in question, and (2) thereafter gave his or her final assent to it.

Based on the terms of the Macool case as well as the change in statute, case law was set forth legitimizing the doctrine of substantial compliance in In re Ehrlich, 427 N.J. Super. 64 (App. Div. 2012). In that case, it was held that an unexecuted copy of a lost will was to be admitted to probate based on the Court’s finding that same had been executed at the time it was prepared. Based on these two cases and their progeny, there may be opportunities in Court to have a defective or unexecuted Will admitted to probate despite being denied admission by the County Surrogate.
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