General Questions from the Monmouth County Surrogate Website
Q) What is a will?
A) When properly prepared, a will is a legal document that tells what you want done with your property when you die. It can tell how you want your property divided and who is to receive any money, property, or personal possessions. Your heirs will know exactly what you want done. Death is a trying and stressful time for those who survive. A will can be a comfort: if you have stated exactly what you want, your intentions will be known.
Q) Does everyone need to have a will?
A) Anyone 18 years of age or over, or anyone owning real property should have a will. It is beneficial to have a properly drawn will regardless of the size of your estate.
Q) What are the necessary elements that a properly drawn will must contain?
A) There are a few items that are essential in all wills:
- Burial instructions– state just what you want done with your remains, plans for a funeral, if you want one, and burial. You should also note if burial arrangements have already been made and paid for, with whom, whether a cemetery plot has been purchased, and where. It is a good idea to keep copies of these pre-paid plans with your will.
- List of beneficiaries– be specific with the bequests, stating exact amounts. Also list those who are to receive the remainder of money and assets if need be. Include specific dollar amounts or percentages.
- List alternative beneficiaries– in case someone you have named, including your spouse, predeceases you.
- Name an executor– he or she is the one who will carry out your wishes for your estate. Also name an alternative in case your first choice is not able to carry out the duties. It is also a good idea to let the executor know you have selected him or her, inform the executor where to find a copy of your will, or give the executor designate a copy.
- Name a Guardian– if you have minor children (under age 18) it is important to specify who will actually be responsible for the day to day care of your children and/or responsible for any property the children may own or inherit. You should discuss this decision with the guardian-designate prior to drawing up your will.
- Serve without bond– providing that your executor and guardian (s) will serve without bond will prevent the need to set aside money from your estate for that purpose.
- Signature– it is important to have two witnesses whom are at least 18 years old. New Jersey requires your signature and those of two witnesses for the will to be binding.
Q) What is a self-proving will?
A) If the will is signed and witnessed before a notary public or an attorney, it becomes a self-proving will in New Jersey. However, if a notary public or an attorney did not witness the signing, a witness proof will be required to verify the signature of the decedent before the probate process can begin.
Q) Where should you keep your will?
A) Your will should be kept in a safe place that is easily accessible in the event of you death and where the executor can find it. Tell the executor where it is located or give him or her a copy to keep. If a will is kept in a safe deposit box it might not be accessible on a weekend, late at night or without a joint holder of the box.
Q) When do you need a codicil?
A) A codicil is an addition or supplement to the original will that adds to or replaces part of the original will. When the will is offered for probate, so is the codicil. If there is a small change in your life such as marriage, divorce, birth, or death a codicil can be attached to your existing will. A new will does not have to be drafted.
Q) How do I contest a will or dispersal of the estate?
A) A caveat must be filled with the Surrogate to temporarily prevent the probating of a will or granting of administration.
Q) What is a trust?
A) A trust is often established for minor children when they receive a bequest. However, a trust can also be created if there is a question of the ability of the beneficiary to handle the responsibility of the money or property. A trust is created through an agreement or through your will and allows for a third person, known as a trustee, to administer the bequest for your beneficiary. A trust can be established to handle property or money in a bank account or other investments.
Q) Does New Jersey allow living wills?
A) Yes. A living will allows you to instruct your family and physicians about life sustaining efforts and equipment that you want or don’t want to sustain you life. A copy of your living will should be kept in a safe place that is accessible in case of an emergency. Family members or those individuals that are close to you should be informed of your wishes and the living will, and know were it is kept.
For more information contact:
Monmouth County Office on Aging
Hall of Records Annex
Freehold, NJ 07728
Phone: (732) 431-7450
Q) What is a power of attorney?
A) A power of attorney is a written document in which you authorize another person, an adult, to act on your behalf, regarding your real property, bank accounts, and other legal matters. A power of attorney is generally used when someone is unable, for some physical or mental reason, to carry out his or her affairs.
Q) What is the difference between a limited and general power of attorney?
A) With a limited power of attorney a person is given authority to act for a specific purpose. An example is the sale of a house when the owner cannot be present. The agent with the power has the legal right to sign important documents. A general power of attorney permits the agent to act on anything and everything for the principal if her/she becomes disabled or mentally incompetent. A power of attorney usually ends at the death or disability of the person who gave it.
Q) What are the tax laws in New Jersey?
A) For up-to-date information about New Jersey’s transfer Inheritance Tax laws, please contact the New Jersey Inheritance Tax Office at 609-292-5033 or www.state.nj.us/treasury/taxation.
The revised New Jersey Transfer Inheritance Tax Act of 1985 provides
for four classifications of beneficiaries.
- Class A: includes spouses and children and provides that they do not pay any state inheritance tax. Also exempt under Class A are fathers, mothers, grandparents, wives, husbands, child or children of the decedent, adopted child or children, any issue of any child or legally adopted child of a decedent, or a mutually acknowledged child or stepchild.
- Class B: Deleted by amendment 7/1/63
- Class C: Brothers, sisters, daughters-in-law and sons-in-law are exempt for the first $25,000. If the bequest is in excess of $25,000 and up to $1,100,000 there is an 11% tax. Up to 1,400,000 the tax is 13%, up to $1,700,000 the tax is 14%. Any amount over $1,700,000 there is a 16% tax.
- Class D: all others are exempt from taxation if the total amount is no more than $499. There is a 15% tax on any amount up to $700,000 and 16% for any amount beyond that
- Class E: includes bequests for charitable or public purposes to the State of New Jersey, an educational institution, church, hospital, orphans asylum, public library, and certain other non-profit agencies. These are also exempt from inheritance taxes.
Q) How soon must state inheritance taxes be paid?
A) State inheritance taxes must be filed and the tax paid within eight (8) months after decedent’s death to avoid interest.
Q) Does the federal government tax an estate?
A) The federal government does tax an estate. As of 2002 the first $1,000,000. of the estate is exempt from taxation and no tax form needs to be filed. When the estate exceeds $1,000,000., it is recommended that an accountant or lawyer be consulted to help compute the correct tax owed. The applicable credit amount will increase again in 2004 to $1.5 million. By 2009 it will have increased to $3.5 million with a repeal in 2010.
Q) What is joint ownership?
A) When a husband and wife own a piece of property equally together, they have joint ownership. Upon the death of one, the other automatically becomes the owner.
- When two or more persons, other than spouses, own real estate together, they are “tenants in common.” They own an undivided share of the property, unless their deed specifically states that they are “joint tenants with the right of survivorship and not as tenants in common.”
- Usually property held in joint ownership goes to the surviving owner upon the death of the other. However, under tenants in common, the share passes to the heirs of the deceased.
- Personal property may be jointly owned with the right of survivorship. Checking accounts, savings accounts or stocks and bonds may be held jointly or as tenants in common. Transferring ownership of stocks and bonds can be complex. Contact the “registered agent” or “transfer agent” for the proper procedure and necessary paperwork.
- The title of a motor vehicle can be changed more easily with a Surrogate’s Certificate. If the title is held with someone other than a spouse or by the decedent alone, the executor/executrix must present a Certificate of Executorship/ Administrations, Affidavit of Next of Kin or Affidavit of Surviving Spouse at the Division of Motor Vehicles together with the original title, registration, and insurance identification card.
Q) How many Surrogate’s Certificates/Shorts will I need?
A) Creating a list of all of the assets of the estate will help determine the number of Certificates you will need to have issued by the probate clerk.
Q) Am I entitled to compensation as an executor/administrator?
A) Yes! The executor/administrator is entitled to corpus commission of 5% of the first $200,000 of estate assets subject to administration, 3 ½ % on the excess of this amount up to $1,000,000. A commission of 2% is entitled in amounts exceeding $1,000,000.