NEW JERSEY WILLS AND TRUSTS REQUIREMENTS
Statutory Authority.
Wills:ย New Jersey Statutes, Title 3B, Chapter 3 (NJ Stat. 3B ยงยง 3-1, et. seq.).
Trusts: New Jersey Statutes, Title 3B, Chapters 11, 31 (NJ Stat. 3B ยงยง 11-1, et. seq., 31-1 et. seq.).ย
New Jersey Will Requirements.
To create a valid will, a New Jersey testator must be at least 18 years old and of sound mind.ย The will itself must clearly indicate that it is intended as a will and must be written and signed by the testatorโexcept that someone else can sign on the testatorโs behalf in the testatorโs presence and at the testatorโs request.ย ย
Additionally, a valid New Jersey will must be attested by two competent witnesses.ย The witnesses must actually observe the testatorโs signature or hear the testator affirm that the document is intended as a will.ย Witness signatures must be included within a reasonable time after the witness observes the testatorโs signature or hears the testatorโs acknowledgement.ย Though disinterested witnesses are generally preferable, a New Jersey will is not invalid just because it is attested by a witness who has an interest in the will.
New Jersey law permits wills to incorporate other existing documents by reference if the document is sufficiently described to allow identification.ย Incorporation of personal property memoranda by reference is expressly authorized for specific bequests of tangible personal property items.ย Personal property memoranda must be in the testatorโs handwriting or signed by the testator and must identify relevant items with reasonable certainty.ย A personal property memorandum may be prepared before or after execution of a will and can be altered by the testator.
Wills in New Jersey do not technically need to be notarized. However, New Jersey wills can be made โself-provedโ if the will is accompanied by a statutorily compliant self-proving affidavit.ย The notarized affidavit must be signed by the testator and witnesses and state that the testator signed the will willingly and had legal capacity to create the will when signing. ย The New Jersey legislature publishes a form self-proved affidavit within the New Jersey Statutes, at Title 3B, ยงยง3-4, 3-5.ย ย
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Amendment, Revision, and Revocation of New Jersey Wills.
Provisions of a New Jersey will cannot be altered except via execution of a codicil or another will.ย A codicil, which is a separate document that revises the terms of an existing will, can be used to amend a will as long as the codicil is signed, dated, and otherwise satisfies all formalities required for creation of a will.ย ย
A New Jersey will can be revoked or amended through execution of a new will expressing the intent to revoke or supplement the prior will. ย If a later-executed will is not clear as to whether a prior will is being revoked, the earlier will is considered revoked if the later will disposes of substantially all of the testatorโs assets.ย If a later-executed will does not address portions of the estate, then it is treated as a supplement to the earlier will, with the later will taking precedence if there are any conflicting provisions between the two.
New Jersey law alternatively permits revocation of a will by intentional physical destruction of the document (such as through burning, tearing, or shredding).ย The destruction must be accomplished by the testator or by someone else acting at the testatorโs direction while in the testatorโs presence.ย ย
Provisions of a will executed prior to a divorce are deemed under New Jersey law to have been revoked to the extent the provisions include dispositions of property to the former spouse or appointment or nomination of the former spouse (or relative of the former spouse) in any fiduciary or representative capacity.ย However, will provisions relating to a former spouse are not revoked if the will or a court order or property settlement agreement expresses a contrary intent.
Holographic and Oral Wills.
Under New Jersey law, a document intended as a will but not properly witnessed is admissible as a valid will in probate if all material provisions are recognizably written in the testatorโs own handwriting.
Additionally, a document that does not meet the formal requirements for a New Jersey will or a holographic will may be treated as a valid testamentary document if a proponent of the document can establish through clear and convincing evidence that the document was intended as the decedentโs will or an amendment, revocation, or revival of the decedentโs will.ย ย
New Jersey law does not recognize oral (or โnuncupativeโ) wills.
New Jersey Trust Requirements.
The New Jersey Legislature has adopted the Uniform Trust Code approach to trusts, subject to a few modifications.ย New Jersey law allows for a variety of trusts, including special needs trusts that provide for beneficiaries without jeopardizing eligibility for Medicaid; spendthrift trusts that canโt be reached by beneficiary creditors; charitable trusts that provide support for a charitable purpose and often confer estate-tax advantages; trusts for the care of animals; and discretionary trusts that give trustees significant flexibility over distributions
To create a valid trust in New Jersey, the grantor must have sufficient capacity.ย That is, the grantor must be an adult of sound mind when creating the trust.ย A trust becomes effective when the settlor transfers title to property to a trustee for a beneficiaryโs benefit; upon the grantorโs declaration that he or she holds property as trustee for someone elseโs benefit; or upon execution of a written appointment of a trustee.ย Creation of a New Jersey trust must be evidenced by a written document.ย ย
To be valid, a New Jersey trust must have a named trustee with actual duties to perform, at least one identifiable beneficiary, and some sort of property formally transferred into the trust.ย At least one beneficiary of a New Jersey trust must be ascertainable, subject to a few exceptions such as charitable trusts and trusts for the care of animals.ย The same person cannot be the sole beneficiary and sole trustee of a New Jersey trust.
New Jersey trusts can be used for any purpose that is not impossible, unlawful, or contrary to the stateโs public policy.ย Trustees are obligated under New Jersey law to act in good faith with undivided loyalty to beneficiaries.ย Trustees must exercise reasonable prudence in managing trust assets.
New Jersey trusts terminate upon revocation or expiration under the terms of the trust instrument, upon termination by a trustee empowered to terminate the trust, or if the purpose of the trust becomes impossible, unlawful, or uneconomical.
The Estate Planners Tactical Guide
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Estate Taxes:ย The New Jersey legislature repealed New Jerseyโs state-level estate tax effective beginning in 2018.ย Large New Jersey estates may still qualify for the federal estate tax.
Inheritance Tax:ย New Jersey imposes a tax on inheritances ranging from 11 to 16 percent.ย The precise amount depends on the value of the inheritance and the heirโs relationship to the decedent.ย Spouses and domestic partners, direct descendants (i.e., children, grandchildren), parents of a decedent, and religious and charitable institutions are exempt from the tax.ย Siblings and sons- / daughters-in-law are exempt up to $25,000.ย Other heirs are taxed at 15% up to $700,000, and 16% for any additional amounts.
Simplified Probate:ย New Jersey law provides a simplified probate process for small estates.ย A married decedentโs estate can qualify for summary probate if the value of the probate estate is $50,000 or less and the surviving spouse is entitled to the entire estate.ย If the decedent does not leave a surviving spouse, an heir (with the consent of any other heirs) can request summary probate if the probate estate has a value of $20,000 or less.ย In either case, simplified probate is only permitted for intestate estates.ย If a decedent leaves a will, the estate goes through standard probate in the Surrogateโs Court.
Non-Probate Transfers:ย In addition to living trusts, New Jersey law recognizes multiple other means of transferring assets outside probate.ย Assets that allow for beneficiary designationsโsuch as life insurance policies and retirement accountsโautomatically transfer outside probate.ย Likewise, bank accounts, CDs, brokerage accounts, and similar assets can use a TOD (transfer-on-death) or POD (payable-on-death) designation to bypass probate.ย New Jersey does not recognize TOD designations on vehicle titles or real estate deeds, though property co-owned as joint tenants with right of survivorship automatically transfers to a surviving co-owner upon the other ownerโs death.ย ย
Spousal Shares: New Jersey law guarantees surviving spouses an elective share measured as one-third of a decedent spouseโs โaugmented estate.โย The augmented estate includes probate assets, along with some jointly owned assets, assets transferred within two years prior to death, and transferred assets which the testator continued to control.ย To be eligible for the elective share, the surviving spouse and decedent spouse cannot have been separated at the time of death.ย The elective share is also need-based and mayย be limited if the surviving spouse has other sufficiently valuable property acquired independently or separately inherited.
Creating a will or trust does not have to be difficult or intimidating.ย However, certain circumstancesโlike second marriages, stepchildren, aging parents, special needs beneficiaries, guardianships, and business interests (to name a few)โcan add a layer of complexity and result in unforeseen long-term consequences.ย Whenever any out-of-the-ordinary issues are present, itโs a good idea to consult with an experienced attorney familiar with and licensed under the laws of the relevant jurisdiction.
