“Why the Heck Do I Need a Will?”
IF DEATH COMES TODAY….
HAVE YOU PROTECTED YOUR FAMILY AND LOVED ONES WITH A LAST WILL?
People often talk about estate planning when the topic of death comes up. We all know our passing is a reality but a distant reality……. so, we think. I hope that is true for all of us. But life isn’t always fair and bad things happen every day. Young people die or are disabled in horrific accidents. Middle aged persons in their 40’s and early 50’s die from heart attacks or suffer terrible strokes, aging men and women in their 70’s and 80’s languish with ALS, Alzheimer’s disease, Parkinson’s and dementia. People of all ages, young and old, experience sudden and debilitating illness that robs them of their dignity and quality of life. Speak with a New Jersey Wills lawyer before you need one.
FREDRICK P. NIEMANN, ESQ. HAS PREPARED LAST WILLS, TRUSTS AND ESTATE PLANS FOR CLIENTS OF ALL AGES AND ALL LEVELS OF INCOME AND WEALTH. LET HIS EXPERIENCE AND WISE COUNSEL AND ADVICE WORK FOR YOU TODAY.
Here’s a message to you from Mr. Niemann:
Are you married? Have children, grandchildren? Let me talk to you directly in plain and simple words… you need a Last Will and/or Trust. I have one, and you need one. You also need an estate plan that address life care planning as you get older. Your estate plan should include (at a minimum) a Last Will and/or Trust, a Durable Power of Attorney, and Healthcare Directive.
You need these documents to protect yourself, your children, spouse, grandchildren, domestic partner, favorite charity, parents, siblings … in short anyone or anything important to you.
Why, because if you don’t plan ahead, your spouse may face large and unexpected expenses, taxes and be unprepared to handle the family’s finances. Families may fight over the guardianship of your children and money…, because your 22 year old son or daughter may inherit a sizeable estate and like the prodigal son or daughter squander it by age 25….., because your grandchild with a disability may lose his or her present or future government benefits…..; because the son or daughter-in-law you can’t stand may receive a portion of your estate if they divorce your child …… and the reasons go on and on.
This firm is the best. Professional, caring, and efficient. We plan to use them whenever we need an attorney. Fred Niemann is fantastic!
– Robert & Lynn Hoenig
Fred took our needs very seriously and worked quickly so that we would have all the pertinent documents in place. Your staff willingly spent the time to have us come in and sign the necessary documents, as inconvenient as it was during massive rains, need for social distancing, and my husband’s illness. Fred was knowledgeable in not only estate and end of life planning, but also his expertise in business helped allow our wills, power of attorney and healthcare directives to be fabricated with our unique needs in mind. – As we continue to deal with serious cancer, we feel confident that Fred will be able to help us, if needed, beyond the prepared documents.
– Kelly Lloyd, Howell Township NJ
Why Should You Have a Last Will for Estate Planning in New Jersey
INTRODUCTION TO A NEW JERSEY WILL: THE BASICS YOU NEED TO KNOW
A Will is a document which directs how your property is to be distributed upon your death and provides structure for the people you love and care for when you are gone. A Will creates a fiduciary (a trusting relationship) between your executor and beneficiaries in which property is held for the benefit of one (or more) person(s).
The person creating the Will is generally referred to as the testator, or grantor.
The testator typically executes a written document (called a “Last Will” or just a “Will”) which upon death authorizes the transfer of property to a person called an executor or executrix. The executor is responsible for administering the terms of the Will. The person for whose benefit the Will is created is called a beneficiary. The property held in the estate is often called estate property, or the probate estate. A person must have the legal capacity to create a Last Will in New Jersey. Legal capacity means generally that the person is of sound mind and legal age when he or she signs his or her Last Will & Testament.
New Jersey statutes and case law control the creation, operation, and termination of a Will. A Last Will can generally be written in any way you want to transfer your property and estate except to the extent that what you want to happen upon death is illegal or against public policy. Generally, where a Will fails to address some issue, New Jersey law is examined to provide guidance and direction.
What Can a Last Will Accomplish for You?
A Last Will & Testament provides for the management of your property, the accumulation and distribution of income to your beneficiaries, direct the timing of when property is distributed to your beneficiaries, defines the withdrawal rights and powers of trustees named in your Will and when authorized, how the named powers can be exercised for the economic benefit of named beneficiaries.
Can a Will Contain a Trust?
A trust written within a Last Will comes to life when a person dies. This trust is called a testamentary trust. Instead of a trust written within a Last Will, a person can create a separate stand-alone living and revocable trust during his or her lifetime. This type of revocable living trust is not subject to probate.
A Last Will and Guardianship of Minor Children
If you have children, a Will should designate who will become their legal guardian if you and your spouse both die together. In the absence of a designated guardian, your children are subject to a lengthy and potentially damaging custody and guardianship battle between well-meaning and loving family members, each of who believes he or she is best suited to be your children’s guardian to raise them as you would have raised them. Note that the legal age of emancipation in NJ is 18 or 21 depending upon several scenarios. A guardian is legally responsible for the health, education, maintenance and welfare of your children. They serve as your child’s legal decision-maker until they become an adult. Financial support for the needs of your child should also be addressed in a support trust under your Will. There are many forms of support trusts suitable for children. Read the contents of the pages below to learn more about the use of a trust for children:
Fred was interviewed by NJ 101.5 statewide radio on the topic of social media and estate planning concerning your online
presence upon your death. Read Fred’s interview and the article which appears by clicking below.
NJ Estate Planning Checklist
Does Your Last Will, Durable Power of Attorney (POA) and Health Care Directive Measure Up?
Find Out by Reading On
Your estate plan is an investment in you and your family’s future. As years pass, your family may grow, your assets will change, and new laws will be passed. We recommend all of our clients review their estate planning documents once every five to ten years.
I have prepared this checklist for you. It focuses on the foundation of your estate plan, including documents such as a Last Will and Testament, Revocable Trust, General Durable Power of Attorney and Living Will. (Note that references to a “Revocable Trust” on this Checklist are generally interchangeable with the term “Will or Last Will & Testament “, which can also be used as the centerpiece of an estate plan.) However, irrevocable trusts – such as a Life Insurance Trust – and other estate planning vehicles should also be reviewed periodically to see if they are performing as expected.
My checklist also includes some of the questions YOU should ask yourself when reviewing your existing NJ estate plan documents.
- First off, do you even have a (i) Last Will and Testament, (ii) Revocable Trust, (iii) General Durable Power of Attorney (POA), and (iv) Health Care Power of Attorney/Health Care Proxy/Living Will? Every complete estate plan must contain these documents.
- Have you moved to NJ from another state since you last updated your Will? If you moved from another state to New Jersey, there may be questions about the interpretation or validity of your existing estate planning documents.
Generally, estate planning documents, including your Last Will when executed in another state will be valid in New Jersey, but our state may have specific statutes or tax laws that are not addressed in your existing estate plan. You may want to contact a us to update your Last Will & Testament.
Here is My Checklist
- Do you have a personal property designation in your Will? Is there a separate writing where you indicate who should receive specific items of personal property such as photographs, jewelry, artwork, etc.? If you have one, you should review it and make sure that it is still an expression of your wishes. If you don’t have a personal property designation, you may want to consider creating one so that specific items will go to a specific person or persons.
- Is any person receiving all or a portion of your estate a minor child (under age 18, 25 or 30)? If so, your Will should make provisions for his or her property to be held by the minor’s Guardian or trustee under a written trust provision until he or she attains an appropriate age.
- Do you have any specific gifts or bequests you want to make? Any gift of cash or of property other than personal property should be stated in your Will and/or Trust. If you intend to give away a specific asset to a person listed in your existing Will or Trust (i.e., your home or antique car), be sure that the asset still exists. Also, your Will or Trust should provide for what happens if the specific asset or item of property is sold during your lifetime.
- What is the total combined value of your (and spouse)’s assets, including life insurance death benefits? There may be federal or New Jersey Inheritance Tax imposed at your death. Both Federal and New Jersey Estate Taxes can be reduced or even eliminated with appropriate estate tax planning. If you are married, assets of both spouses should be valued together to see if they exceed current death tax exemption limits. If you have a taxable estate, your estate plan should contain trusts or other provisions to reduce taxes. Note that New Jersey has phased out the estate death tax but don’t count on it to last. I’m convinced the governor, who is a pro-tax governor and his allies in the legislature will resurrect some form of death tax. What the exemption amount will be in the future is unknown today. I am however advising clients and preparing documents with the expectation that the federal death tax be increased after 2026. I’ll be happy to explain my thinking should we meet together.
The Benefits of Having a Last Will at a Glance
A Last Will can seem complex and a lot to think about, but it doesn’t have to be. With some basic planning, common sense and the guidance of an experienced estate planning attorney, you can have a Last Will prepared quickly and with a reasonable cost. Here are some reasons to act now.
A well written NJ Will can address and protect you and your loved ones from:
- Involvement by the state of New Jersey in the affairs of your estate, i.e., judicial involvement and the Surrogate’s Court
- NJ and Federal death and inheritance taxes
- Second marriage issues, especially involving children from an earlier marriage
- Having to file and pay the costs of annual bonding fees and premiums to an insurance company
- Having to prepare and file one or more accounting with the courts and/or County surrogate’s office
- Claims of creditors and not having the financial means to resolve debts
- The son and/or daughter-in-law you can’t stand
- Your estate going to beneficiaries that you do not want to receive anything
- The avoidance of probate disputes and estate litigation by everyone who wants your money
A well written last Will can address:
- Guardianship of your children, including a disabled child with a physical and/or cognitive impairment/limitation
- A special needs child who needs protection through government benefit programs
- Asset protection planning against creditors, and to protect beneficiaries and family members
- Life care planning for advancing age and illness
- Selection of a trustee and executor for your estate and/or living trust
- Creation of a support trust for your minor children until they become adults
- The creation of a Durable Power of Attorney and Health Care Directive
WHAT PROVISIONS SHOULD YOU INCLUDE IN YOUR NJ WILL
Now that you are better informed about the use of a Last Will, you can confidentially discuss with your attorney those provisions important to you that will accomplish your estate planning goals. Among the provisions which can be placed in a Last Will are the following:
- Gifts of property to specified beneficiaries, including both general gifts (e.g., “all of my household furniture to my daughter, Molly”) and specific bequests (e.g., “my 1988 Buick Skyhawk to my nephew, Jeremy”)
- Provisions that allocate payment of New Jersey estate and inheritance taxes to the beneficiaries (e.g., “The payment of all of my estate tax liability is to come from my residuary estate after which my estate shall be distributed to my niece, Anne.”)
- Provisions that maximize estate tax planning for the estate tax exemption, unified credit and the marital deduction (e.g., “That portion of my estate which equals the New Jersey or federal death tax exemption equivalent in the year of my death shall go to my children in equal shares; the rest of my estate shall go to my surviving spouse, Mary.”)
- Provisions that specify guardians for minor children (e.g., “In the event that both my wife and I are killed, then I hereby name my brother, Randy, to serve as guardian of our minor children.”)
- Provisions that provide a presumption of survivorship (e.g., “In the event that it cannot be determined who died first, and we both die together in the same disaster or accident, then it shall be presumed that I predeceased my wife.”)
- Provisions that name an executor of your estate (“I hereby appoint my sister, Amy, to serve as executrix of my estate and in the event my sister Amy predeceases me, then I hereby name my brother, Christopher, as my executor.”)
- Provisions for distribution of a portion of the estate to a qualified charity (e.g., “I hereby bequeath $40,000 to the American Diabetes Association for purposes of research and education.”)
- Allocation of the remainder or residue of the estate to prevent partial intestacy (e.g., “I hereby bequeath all the rest, residue, and remainder of my estate to my wife, Edith.”)
- Provisions for income distribution to the surviving spouse and other family members (e.g., “In the event of my death, I hereby allocate my income-producing stock portfolio to the XYZ trust, the terms of which I direct $1,000 per month shall be distributed to my surviving spouse, and in the event my spouse shall predecease me, then I direct that $1,000 per month shall be distributed to my children equally until they shall reach the age of twenty eight (28).
In addition, other specific provisions can be easily inserted into your Will to achieve your specific estate-planning objectives. Therefore, this list should not be considered an all-inclusive list of provisions.
Creating a New Jersey Will Can Protect Against… Mayhem
We all know the Allstate Insurance commercial that addresses mayhem in the world we live in. The commercials are really clever, entertaining and probing. It makes us think about whether we have enough insurance. Well, the same lessons can be learned in your NJ estate planning.
Protecting Your Estate Against Mayhem
The following are examples of the mayhem I am talking about.
- A surviving spouse who has little experience with the family finances
- A spendthrift spouse or child
- The son or daughter-in-law you can’t stand
- Financial predators of your loved ones
- Poor judgment and immaturity of younger children
- Special needs children losing government benefits
Read these questions about your estate plan, if you have one:
- Upon death, will your estate assets be distributed to your beneficiaries outright or in trust? If assets are distributed to a beneficiary outright, the beneficiary can do whatever he or she pleases with the assets. These assets are at risk to the beneficiary’s creditors, a divorcing spouse in a marital action, and poor judgment. It is possible to create a Will with a trust that gives the Trustee (who may also be a beneficiary) great flexibility in distributing the assets to the beneficiaries, and at the same time protects those assets from a beneficiary’s immaturity, misuse, creditors, divorce, etc. Also, a trust can be used in your Will when you want to direct how assets will pass upon a beneficiary’s death. For instance, many times in a second marriage a trust will be established for the benefit of the spouse but provide that upon the spouse’s death the trust assets will pass back to children. You should speak with Fredrick P. Niemann about the benefits and drawbacks of using a trust to distribute your assets to your beneficiaries.
- If you currently have a Will, are the terms of the Will still appropriate? Many people establish a Last Will for young beneficiaries, mostly children but not always. You should look at the ages when your estate assets will be distributed outright to beneficiaries, keeping in mind that assets distributed to somebody who is 18 are likely to be spent differently than if distributed to a person who is 30 years of age or older. It may be appropriate to increase or reduce the ages at which the beneficiaries will receive an outright distribution under our existing Will or Trust.
- Alternatively, it may be appropriate to give the beneficiary an income stream or give the Trustee greater discretion to make distributions from trust principal. For example, a trust within a Last Will might say that a child is entitled to receive the income from the trust starting at age 25, and that principal must be distributed to the child outright at age 30 and 35. Prior to age 35, you can specify that trust principal be used for the beneficiary pursuant to the terms of the trust. By structuring a trust this way, the beneficiary has an opportunity to learn how to budget and manage money.
- Do any of your beneficiaries have special needs? If you have a disabled child or someone who is elderly or with special needs, that beneficiary may need to qualify for public benefits in order to maintain their standard of living. If a person who is receiving public benefits receives an inheritance directly, the public benefits will cease, and the person will have to exhaust their inheritance to pay for the care that public benefits would otherwise have provided for. Once the inheritance is exhausted, the person must then reapply for benefits. This can be a traumatic and expensive process. Instead, you should consider leaving assets in a purely discretionary Special Needs Trust for the person, drafted in such a way that it does not interfere with the person’s ability to receive public benefits. By using this approach, the trust becomes a security blanket for the beneficiary, not a burden. You can read more about protecting a special needs trust by reading our dedicated web page on special needs trust here.
READ ABOUT THIS REAL LIFE STORY OF A PERSON WHO FAILED TO PLAN HIS ESTATE . . AND DIED SUDDENLY.
I tell clients about a middle-aged wife and mother who came in to see me years ago. Her husband of 25 years had died, early, young and unexpected. He was scheduled to sign his estate planning documents the week after he died.
He was worth a lot of money. But he died before he signed a single document.
By law, he died intestate, meaning he died without a Will. Because of that, we had to deal not only with the emotional tragedy of his unexpected death, but the significant financial costs associated with no having estate plan in place. You see, by not signing his estate planning documents before he died, it was if he had done nothing to prepare for his death.
Here’s a Brief Questionnaire to Determine if You Need a Last Will in New Jersey
- Do you want your minor/adult children to be the co-owners of your estate with your surviving spouse or only upon the death of your surviving spouse?
- Do you want your children by a previous marriage to be disinherited by your present spouse after you die?
- Do you want to potentially save money in federal and New Jersey death and inheritance taxes?
- Do you want in-laws, family and/or friends filing lawsuits over the custody of your children? If your answer(s) to any of these questions is no, then you need to contact Fredrick P. Niemann, Esq. as soon as possible!
My husband and I were together for almost twenty (20) years. We met with Mr. Niemann to have our Wills, Powers of Attorneys and Healthcare Directives prepared. Mr. Niemann was insistent that we have a Comprehensive Power of Attorney, Healthcare Directive and Living Will to protect us if either one of us became sick. Recently, my husband passed after a sudden illness. Thank Goodness for the Healthcare Directive and Power of Attorney prepared by Mr. Niemann. I submitted the documents to the attending physician who promised to honor their terms and purposes. It saved me from possible anguish in case there was a disagreement as to whether life support should or should not be continued. I now better understand the benefit to having a Power of Attorney and Healthcare Directive and am appreciative of Mr. Niemann’s advice concerning the importance of these documents.
I have agreed to sponsor this testimonial because I know firsthand the importance of having a Power of Attorney and Healthcare Directive when faced with an unexpected personal or family emergency.
– Donna Foster, Manalapan, NJ
My wife and I wanted to express our gratitude for the guidance and patience from you and your staff along this journey. Life is strange at times and the things that bring us together can be just as strange, if not more.
I not only got to put a few bucks in the bank, but got to reconnect with my cousin Sarah, which was a great surprise for me. That alone was worth the journey for me. Getting to know her and the family has been really nice.
I know it was a long day for all of us in mediation, but I really am blessed to have gotten to know you and talk with you. I admire your skills, work ethic and attitude regarding time and Patience. When the opposing attorney was running her big mouth and doing her thing, you never lost your composure, nor your position. I’m hoping it’s one of the nuggets I’m able to take and implement in my personal/professional life.
The short version of this story is that you have a lot to offer people, you’re a true, trusted advisor. Your words and actions seem to align with your values, which is like common sense, very hard to come by now a days. Your staff does a great job as well. Please let them know that as often as you can.
Keep up the good work Fred and thanks again.
– Mike Price – Plainfield, IN
I came to Hanlon Niemann & Wright to have a Last Will & Testament done. Everyone I met with was very professional, knowledgeable and courteous which is sometimes hard to find. All of my questions were fully answered, my documents promptly prepared and my telephone calls promptly returned. Everything was up to my expectations.
—Susan Handelman, Freehold, NJ
Video: A Checklist for What to Include in Your Last Will & Testament
So, What Do You Think?
Put our forty (40)+ years of legal experience to work for you. Call our office today and ask for Mr. Niemann to personally discuss having a Last Will prepared. You can reach him toll-free at (855) 376-5291 or e-mail him at firstname.lastname@example.org.
He welcomes your calls and you will find him easy to talk to and receptive to your questions and concerns. He has counseled many, many hundreds of individuals and families.
Fredrick P. Niemann, Esq. was invited by the Office of Elder Rights and Adult Protective Services of the Department of Health and Senior Services, Division of Aging and Community Services, to make comments on existing Adult Protective Services Programs.
On March 6th, Fredrick P. Niemann, Esq. addresses the Monmouth County NJ Bar Association Family Law Committee on Special Needs Trusts, Supplemental Needs Trusts for adult and minor incapacitated children and aged parents and their use in asset planning and eligibility for government benefit programs, including Medicaid, SSI and SSD.
NJ Wills Lawyer Serving These New Jersey Counties:
Monmouth County, Ocean County, Essex County, Cape May County, Mercer County, Middlesex County,
Bergen County, Morris County, Burlington County, Union County, Somerset County, Hudson County, Passaic County