Wills FAQs

For most people, a Last Will and Testament is the first estate planning document they create. That initial Will may continue to serve as the foundation of their estate plan or they may eventually relegate their Will to a supporting role within a much larger and more comprehensive estate plan. Whether your Will constitutes your entire estate plan or is only a piece of a much larger puzzle, your Will is a powerful legal document that should be created and executed with care. To ensure that you understand the power and importance of a Last Will and Testament, the New Jersey estate planning attorneys at the Augulis Law Firm have created several frequently asked questions and answers relating to Wills. If you have specific questions about your Last Will and Testament, or you wish to get started creating your Will, feel free to contact our office to schedule a consultation.

• • What is a Last Will and Testament?

• • A Last Will and Testament is a legal document that allows you to communicate your wishes with regard to assets owned by you, or in which you have an ownership interest, at the time of your death. Your Will acts as a blueprint for the distribution of your estate assets after you are gone. In addition, you name your Executor in your Will. Your Executor is the person who oversees the probate of your estate. Finally, your Will offers you the only official opportunity you will have to nominate a guardian for your minor children in the event one is ever needed.

• • I’m too young to worry about a Will aren’t I?

• • This is a common explanation provided by people who have yet to execute a Will. The truth is that every adult, regardless of age, should have a Will. You can always update your Will and add to your estate plan when you are older and have a family and/or a larger estate; however, you are never too young to have a basic Will in place.

• • I don’t need a Will until I have valuable assets, right?

• • This is another common myth. While the need for estate planning does increase as your estate grows, you do not need to own valuable assets to benefit from executing a Will. You undoubtedly care what happens to the assets you do own right now. Moreover, you probably care who handles the probate of your estate and you certainly have an opinion with regard to who should be appointed as your children’s guardian if you have children. All of this can only be accomplished with a Will.

• • What happens if I die without a Will?

• • If you die without executing a Will first your estate will be referred to as an “intestate” estate. When you die intestate, the state intestate succession laws are used to determine what happens to your assets. Typically, only close family members will inherit from your estate, meaning close friends, favorite nieces and nephews, and beloved charities will receive nothing rom your estate. You also give up the right to dictate who will oversee the probate of your estate if you die intestate.

• • Do I really need an attorney to create a Will?

• • Given the ubiquitous nature of DIY legal forms on the internet it can be tempting to forego the attorney and just use one of those forms. Doing so, however, is almost always a mistake. DIY legal forms are frequently full of errors, out of date language, omissions, and are usually lacking in state specific information. Ultimately, using a DIY Will form is just as likely to cost your loved ones time and money as it is to save you time and money because they often lead to costly litigation.

• • Who should be my Executor?

• • One of the most common mistakes people make when creating a Will is to simply appoint a spouse, friend, or family member as the Executor of the Will without giving any real consideration to whether the individual is the best person for the job. The Executor of a Will has a number of duties and responsibilities, many of which are best carried out by someone with a legal and/or financial background.

• • What happens to my Will after my death?

• • Shortly after your death, the individual appointed as the Executor of your Will should submit the original Will to the appropriate court for probate. The Executor is also required to notify beneficiaries and heirs of the estate as well as creditors that probate is underway. Creditor claims are reviewed and paid if approved. Any federal and/or state gift and estate taxes due must also be paid. Eventually, the terms of your Will are used to determine how the remaining estate assets are distributed.

• • Can someone contest my Will?

• • During the probate of your estate, any interested party has the right to contest the validity of the Will submitted for probate using one of several allowable legal grounds. Contrary to what many people believe, a Will cannot be contested simply because the contestant is unhappy with the inheritance left to them (or lack thereof). Instead, a Will contest must allege, and eventually prove, a legal reason why the Will is invalid. The Executor of the Will must defend the Will during the litigation. Ultimately, if the Will is declared invalid, the court will look for a previous, valid, Will to use to probate the estate. If none is located, the state intestate succession laws will be used to distribute the estate. If the Will is upheld, the probate of the estate continues using that Will.