Wills and Living Trusts

What an Estate Plan Is For

Most people who call us about a will are not really calling about a will. They are worried about one specific person, or one specific fight they can see coming, or the simple fact that nobody in the family knows where anything is. The will is how we solve that. It is not the point in itself.

We draft estate plans for people in New Jersey and New York. This page explains what goes into a sound plan, what the two states do differently, and where plans tend to fail.

The Documents

A last will and testament disposes of the assets that pass through your probate estate, names your executor, and, if you have minor children, designates a guardian for them. New Jersey requires a signed writing witnessed by two people. If you also sign a self-proving affidavit at the time of execution, your executor will not have to track down the witnesses years later. New York has its own formalities around publication, subscription, and attestation, and they are just as strict. Execution defects are the most common way a will gets attacked, so we treat the signing itself as part of the work.

A revocable living trust holds title to your assets during your lifetime, lets a successor trustee step in if you lose capacity, and passes assets outside probate when you die. If you own real estate in more than one state, say a house in Union County and an apartment in Manhattan, a trust avoids a second, ancillary probate proceeding in the second state. It also keeps the terms of your plan out of the public record, which matters to some families more than others. A revocable trust is almost always paired with a pour-over will to catch anything that was never moved into the trust.

Irrevocable trusts solve specific problems at the cost of flexibility. Irrevocable life insurance trusts, spousal lifetime access trusts, special needs trusts that preserve means-tested benefits, and Medicaid planning trusts each have a job. We recommend them when you actually have that problem, and we will tell you when you do not.

Beneficiary designations and titling are the part of the plan people forget. Retirement accounts, life insurance, transfer-on-death registrations, and jointly held property pass by operation of law. Your will does not control them. The most expensive estate mistakes we see are not drafting mistakes. They are old beneficiary forms that still name a former spouse or a parent who died years ago. We go through the whole balance sheet, not just the will.

Incapacity documents round it out: a durable power of attorney, a health care proxy or advance directive, and a HIPAA authorization. Without them, if you become incapacitated your family’s only option is a guardianship proceeding, which is public, slow, expensive, and adversarial if anyone disagrees.

Taxes

New Jersey repealed its estate tax for deaths after January 1, 2018, but it kept the inheritance tax, and the inheritance tax is based on who inherits, not how much. Spouses, children, grandchildren, and parents are Class A beneficiaries and pay nothing. Siblings and children-in-law are Class C and get a modest exemption before graduated rates apply. Everyone else, meaning nieces, nephews, friends, and unmarried partners, is Class D and is taxed from the first dollar above a small threshold. This surprises people constantly. A gift to a nephew is not the same net gift as the identical amount left to a child, and it is better to know that while you can still decide whether to gross it up or restructure.

New York has an estate tax with its own exclusion amount, separate from the federal one, and a “cliff”: if your taxable estate exceeds the exclusion by more than five percent, the whole estate is taxed, not just the excess. New York also does not allow a surviving spouse to use the deceased spouse’s unused exclusion, so credit shelter planning does more for a New York couple than for a New Jersey one.

We describe the mechanics rather than quoting dollar figures here because the figures change. We will give you the current numbers when we meet.

How Plans Get Attacked

Wills and trusts are challenged on a handful of recurring grounds: lack of testamentary capacity, undue influence, fraud, defective execution, and, where someone tried to disinherit a spouse, the surviving spouse’s elective share, which both states provide.

Undue influence is the one worth understanding in advance. In New Jersey, if there was a confidential relationship between the person making the will and a beneficiary, and there are also suspicious circumstances, such as a late-in-life change, a beneficiary who arranged for the lawyer, or a lawyer who represented both, the burden of proof shifts to the person defending the will. New York’s framework is structured differently but ends up in a similar place: the challenger has to show that influence was actually exercised, not just that someone had the opportunity.

We draft with those fights in mind. That means independent representation, notes in the file about capacity and intent at the time of signing, careful choice of witnesses, and a signing ceremony we run the same way every time. If your executor ever has to defend the will, that record is what they will rely on.

Probate and Estate Administration

We also handle the other end: getting an estate through the courts after someone dies.

In New Jersey, an uncontested will goes through the county Surrogate’s Court after a short waiting period, and the process is relatively simple. New York is more involved. Probate goes through Surrogate’s Court on a petition, and the court has to obtain jurisdiction over the distributees, the people who would have inherited without a will, before it will act.

Either way, the executor takes on real duties: inventorying assets, giving notice, dealing with creditors, filing tax returns, accounting to the beneficiaries, and distributing what is left. Executors are personally exposed if they get this wrong. We represent executors and administrators through that work, and we represent beneficiaries who think a fiduciary is not doing the job.

Getting Started

Most people need one meeting and one round of revisions. Bring a rough list of what you own, the names of the people you trust, and whatever has been bothering you. We will take it from there.

Call (201) 431-6199 or email info@wenstrandlaw.com for a consultation in Cranford, in Manhattan, or by video.