Fear of Death: The Newest American Epidemic

As medical advances began to rapidly increase several decades ago in the United States, the concept of death has become “optional” to a large percentage of Americans. Treatments, cures and therapies all have put a giant safety net under our lives; if one doctor can’t fix you, there is almost always one who is willing to try.

While progress in the medical field has allowed millions of people to live healthier, more fulfilling lives – the most notable change has been the rise in life expectancy rates. Over the past century, the average American has tacked on almost 20 years to their expected life span.

Americans who lived a century ago were not scared of death because of how common it was. Today’s Americans view medicine, science, diet and exercise as a cure for the problem of dying. Now that death has become something that typically occurs in old age, growing old feels like the ultimate failure to many. Denial of death has become the newest American epidemic.

Why is this a problem?

The intense fear of death in our country has put blinders on a large portion of the population, making it impossible to talk about or plan for the inevitable.

As the Baby Boomer generation now edges into old age, many of them are “fighting” growing old with facelifts, hair transplants, fillers, implants and a staunchly oblivious attitude toward their chronological age.

Denial of the eventuality of death has led to a stifled community who cannot even think about dying without breaking into a cold sweat. What this means is that no one wants to talk about their own mortality, or that of their parents (who may be Baby Boomers).

Depending on your own spiritual/religious/personal beliefs, you may not agree that death is something to fear. There are groups of Americans who welcome death as a part of life – a passage into a new beginning.

However, statistics show that most Americans are of the mindset that death is something that can be avoided. Many people in this group simply refuse to plan for their own demise, which leaves a whole new set of problems for those who are left behind.

Overcoming your fear of dying is imperative in that you simply must make plans for your children, your assets, your funeral – even your organs. Prior to dying, you may become ill or unable to care for yourself. Without an Advance Care Directive, no one will know your wishes in such a scenario.

Talking to a therapist about your fear of dying can be immensely helpful. You can learn how to make your life matter so that you develop an acceptance of your mortality. These are important steps for your own mental health, and they will allow you to make decisions about the end of your life – decisions that no one should make but you.

Start here. We’ll help gently guide you through setting up a proper estate plan.

 

Image: “No Fear” by Thomas Leuthard – licensed under CC 2.0

Can I Disinherit My Child in My NJ Will?

In New Jersey, as in most other states, a parent is permitted to legally disinherit a child, provided this intention is clearly stated in a valid will. What follows are the steps you must take to ensure that your wishes are fulfilled with regards to your estate, as well as a few caveats you should be aware of.
In New Jersey, if a person dies without having created a will, any property not disposed of in life will be governed by intestate succession rules. These rules are laid out in N.J.S.3B:5-3 through N.J.S.3B:5-14.

Can I choose to simply leave my child out of my will?
Though it might seem to be the most tactful way to handle this delicate matter, you must clearly state that you wish to disinherit your child in a valid will. Otherwise, the child will be protected by Section 3B:5-16 of New Jersey’s statutes, which protects children from accidentally being left out of a parent’s will.

Include a clause that mentions your child by their full name; this will attest to your having been of a sound mind when the will was drafted. You may keep it simple, saying only, “I have intentionally made no provision for my youngest child, John Doe.”

Do I have to state the reason I wish to disinherit my child?

The reason for disinheritance does not need to be included in your will, though whether or not to do so depends on the circumstances. If no ill will is intended, and there is no acrimony in the parent-child relationship, it is probably advisable to include a clause saying so. “I have adequately provided for my beloved son, John Doe, throughout his life; he is now a successful, independent man. I have therefore made no provision for him.”
There may, however, be good reason to remain silent on the cause for disinheritance. If including the motivation could give the child ammunition for challenging the will, or questioning your state of mind, it would be prudent to refrain from doing so. For similar reasons, it is advised that parents do not speak harshly of their child in a will. The disinheritance is most likely an adequately sharp gesture; there is no need to further attack the child after you have passed away.

Keep in mind that a disinherited child will likely attempt to contest the will. However, if you’ve followed the advice laid out here, your assets will be protected.
The Takeaway:

Here are the steps you must follow to protect your assets:

1. You must create a legally binding will.

2. Update this will any time there is a change in the family: birth, marriage, adoption, or death.

3. Clearly state your intention to disinherit your child in your NJ will, and use your child’s full name when you do so.

4. Include the reason if it will help your child feel more positively about the omission, but exclude it if it will give a hostile child more ammunition to contest your will.
Image: “footsteps” by Catrin Austin – licensed under CC 2.0

Estate Planning for Blended Families

As of 2016, blended families outnumbered traditional families in the United States. In fact, the very definition of what constitutes a family has expanded so exponentially that we may wonder what a “traditional” family even looks like anymore. For our purposes in this article, a blended family is one wherein at least one spouse has previously been married. We will also focus on those spouses who bring children of their own to a new marriage.

Blended families are increasing in number due to several factors. Higher divorce rates mean there are more opportunities for single parents to remarry someone who may potentially also be a single parent. Although rising divorce rates may seem like a bad thing, the good news is that less people are staying in unhappy marriages – choosing instead to strive for happiness, which ultimately should have a positive effect on any children in the family.

With the expanded definition of what makes up a family in today’s society, any number of homes contain a new mixture of children – both hers, his, and “theirs.” Additionally, more and more divorces are amicable, with ex-spouses remaining friendly in order to co-parent. With the addition of a step-parent into the equation, the ex-spouse may wonder if their biological child(ren) will continue to be provided for in the other parent’s will.

Estate planning becomes more challenging with the addition of more family members, regardless of how happy everyone is at the time of the wedding. The hard truth about estate planning for blended (or “step”) families is that planning for the well-being of two sets of children can easily escalate into an argument between the new spouses.

It’s critical to remind clients who have recently become part of a blended family to make sure that they make the necessary changes to the beneficiaries listed on their insurance policies and retirement accounts. No matter what a will says, the named beneficiary will take precedence over the will. Failure to remove a former spouse as beneficiary can prove quickly disastrous to a new marriage. Arguments aside, if you pass away while your ex-spouse is still named as beneficiary on your retirement account(s), guess who’s going to get all of that money?

In order to ensure that you’re not missing any crucial components of a solid estate plan after you’ve grown into a blended family, you’ll need to work with a New Jersey attorney who has significant experience working with complex estate plans. Your attorney will be able to advise you on:

  • Reciprocal wills (and how they can be problematic for blended families)
  • Non-reciprocal wills
  • Life insurance in addition to a will to provide for everyone in question
  • Testamentary trusts
  • QTIP trusts
  • Pre-marital agreements
  • Health care power of attorney
  • Living wills
  • Support obligations
  • Real property

The ultimate goal when working to set up an estate plan as a blended family is open communication between everyone involved. By maintaining open conversations about the details of your estate plan, no one will be left with an unexpected outcome.

 

Image: “Mike & Carla’s Wedding” by Jason Meredith – licensed under CC by 2.0

For SSI Recipients, Does Inheritance Spell Disaster?

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What is SSI?

SSI stands for Supplemental Security Income, and it is a financial assistance program offered by the US government to low-income United States citizens who are blind, over the age of 65, or otherwise disabled. SSI benefits are available to children who are blind or disabled, as well.

SSI is not to be confused with SSDI (Social Security Disability Insurance), which is available to people who have been working for a significant number of years and have paid “their dues,” so to speak, in the form of Social Security taxes that are deducted from an employee’s paycheck. SSDI can be received by anyone who becomes disabled and is no longer able to work, regardless of their current assets. In comparison, SSI funds are provided by the US Treasury, and recipients must have limited incomes and assets along with specific disabilities.

Can an inheritance affect Supplemental Security Income?

If a family member or loved one bequeaths money to you when they pass away, it’s important to know the possible ramifications so that your financial stability remains intact. Receiving an inheritance does not affect SSDI, as it is based on your earnings as an employee in this country. SSI, however, is distributed on a needs-based system, and because of this, anyone who receives an inheritance can become ineligible for SSI benefits.

Those receiving SSI must be intimately familiar with the strict rules that surround Supplemental Security Income so they don’t risk losing their benefits, which not only provides them with much needed financial assistance, but may also provide them with health care coverage through Medicaid.

Although an inheritance is usually viewed as a positive financial windfall, if it causes you to lose your only steady income and health care coverage, it can definitely spell disaster.

Should all SSI recipients refuse an inheritance in order to avoid losing their benefits?

It would seem unfair to exclude SSI recipients from accepting any inheritance money. After all, people who receive Supplemental Security Income are by definition financially distressed and living with a disability.

In order to help SSI beneficiaries from losing their benefits in order to accept the financial windfall of an inheritance, a Special Needs Trust can be established.

What is a Special Needs Trust?

A Special Needs Trust allows a person with disabilities or special needs to accept their rightful inheritance without jeopardizing their government benefits. Typically, parents or caregivers of a disabled person will create a Special Needs Trust when they are establishing their estate plan (will), although one can also be set up after a person dies.

Instead of inheriting their portion of their parent’s money directly, a person with a Special Needs Trust in place will have a trustee to manage the trust for them. In this way, no (or limited) SSI benefits will be lost due to accepting the money that was left to them.

Special Needs Trusts are complex and have many intricate timing details that must be followed to the letter for them to work as they were intended. Also, each family’s financial situation will determine the type of Special Needs Trust that will best meet their needs.

In order to ensure that your special needs loved one receives their rightful portion of their inheritance, you must work closely with an estate planning attorney who is familiar with all of the details surrounding Special Needs Trusts.

 

Image credit: Chris Dlugosz

Does my NJ Will Have to be Notarized?

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The laws surrounding estate planning differ from state to state regarding the signing of your will, how many witnesses must be present, and what conditions make your will complete and valid. It’s true that anyone can print up their own will – or hand write one if they prefer, but it must be in some written form to be legal. There are several qualifications a testator (person creating his or her will) must fulfill in order to execute their will without the help of an estate planning attorney:

  • 18+ years of age: In the State of New Jersey, you must be at least 18 years old in order to write your own Last Will and Testament.
  • Of sound mind: To be of sound mind means that you are able to reason and understand things on your own. You may have been found to be legally incompetent in a court of law if you’ve suffered a brain injury or other mental disability .  If you have been found to be incompetent, you likely have a guardian who was appointed by the court. That guardian can help you draft your will.
  • Two or more adult witnesses: NJ law requires that all wills be signed by the testator in front of at least two witnesses who are both 18+ years of age and are of sound mind. Your witnesses validate your will by agreeing that you are who you claim to be and that your signature is authentic. If a disability prevents you from signing your name to your will, you can authorize someone else to sign for you. This act must also be affirmed by your witnesses.
  • Signed by witnesses: Along with attesting your own signature on your will, the witnesses will also need to sign their names as official acknowledgement of your signature and their presence when you signed.

Does my New Jersey will have to be notarized?

Legally, you are not required to have your NJ will signed by a notary as long as you have met the above listed requirements. However, if you want to make the probate process significantly easier on your loved ones after you pass away, you’ll definitely want to have your will notarized. Your witnesses need to be with you when the will is notarized so that the public notary can attest to their identity.

Wills signed by a notary are considered to be ‘self-proving’ in New Jersey. A self-proving will is one that will move quickly through the probate system after the testator has passed away.

When a decedent has failed to have their will notarized, it means a whole lot of a headaches for their beneficiaries at a time when they are already undoubtedly grief-stricken and overwhelmed.

Additionally, self-made wills often have problems or omissions that lead to intense family disagreements, fighting and potential irreparable damage.

What can I do to ensure that my will is without fault, errors or omissions?

Naturally, you want to save your family members from any strife related to your will after you pass. The best and most cost-effective way to do that is to work with an estate planning attorney. Even if you are reading this page to find out how to execute your will without professional help – we’ll still tell you that your best bet, in this case, is working with an experienced NJ estate planning lawyer.

The cost of having your New Jersey will drawn up by an estate planning attorney is very affordable, especially compared to the exorbitant fees your heirs will end up paying after the fact to fix any mistakes you may make if you go the DIY route. Consultations are FREE at most estate planning firms. Take the time and invest in execute your will with a professional’s assistance. Your surviving heirs will be so thankful that you did.

Image credit: Dan Moyle

Keeping the Peace When Estate Conflicts Arise

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If you have been named Executor in one or both of your parents’ will(s), there are probably a multitude of reasons why you were selected for the duty. Undoubtedly, your parents (and likely the rest of your family) recognized that you possess certain personality traits that make you an ideal candidate for the job. Most people name executors who exhibit the following qualities:

Honesty
Resourcefulness
Book smarts
Responsibility
Reliability
Solid organizational skills
Confidence
Control
Ability to be impartial
Fairness
Authenticity
Loyalty
Safety
Trustworthiness
Sound-mindedness

Naturally, when establishing an estate plan, every decision is taken very seriously, especially when it comes to appointing the executor. If conflicts arise after their passing, the decedent can rest peacefully knowing that you were left in charge of their estate.

Unfortunately, there are entirely too many cases that make their way through the NJ probate system wherein at least one of the beneficiaries (heirs) is unhappy with all or part of the details of the will. This understandably can lead to irreparable damage within a family. Because you are the chosen executor, you must now live up to your reputation that got you the job.

As negotiation may be one of your natural instincts, you may make attempts to reason with the disagreeable beneficiary, hoping that they will come to their senses. However, as these issues tend to date back to unresolved feelings of “favoritism” or other familial conflict, it can often be next to impossible to talk sense into your sibling, especially when emotions are already running high so soon after the death of a parent.

Your best plan of action as estate executor is to follow your legal duties to the letter of the law. Become as familiar as possible with what is expected of you as executor. If your parent worked with an estate planning attorney when they established their will, get in touch with that attorney and bring him up to speed on the current difficulties you are facing.

Even if your parent(s) didn’t work directly with a New Jersey estate planning lawyer, it’s a good idea to reach out to one early in the probate process if it looks like you’ll be dealing with ongoing conflict from one or more of the heirs. As executor, you’ll be able to use funds from the estate to pay the legal fees you incur on behalf of the estate (assuming that the decedent possessed sufficient funds/assets when they passed away.) Even if you don’t retain the services of an attorney immediately, it’s in your best interest to bring your attorney up to speed in case you need to retain him later on in the probate process.

The best way to approach an estate conflict as executor is to be kind but firm to the beneficiary who is being difficult. Resist bending any rules and instead remind them about the laws and timelines that surround the distribution of any assets.

By sticking strictly to your duties as estate executor, you will fulfill the duty that you were so chosen for. It is extremely difficult to satisfy someone who feels they’ve been “wronged” by a decedent, as the deceased is no longer around to explain him or herself. If someone is unhappy with the content of the will, they may take issue with your every move. Stay within the law, and refer to your attorney for help if the disgruntled beneficiary becomes more than you can handle.

Image credit: Hans Vandenberg

NJ Wills: What is Probate?

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Most people go to great lengths to avoid even thinking about their own mortality and that of their closest loved ones. Admittedly, processing the fact that you or someone very near and dear to you will inevitably pass away can be overwhelming and sad.

Our best advice to those who are struggling with the concept of dying is to face it matter-of-factly. Being prepared for all of the details surrounding someone’s passing certainly won’t make it any easier in terms of missing them, but it will put your mind at ease regarding their estate.

What is an estate?

After someone dies, their estate consists of any and all assets (property of value) that they owned. Assets include things like real estate, vehicles, personal items, life insurance proceeds (in some cases) and money. If the deceased person owed any debts, the money in their estate will be used to pay these debts before anything can be dispersed to beneficiaries.

How do I start the process of sorting through my loved one’s estate?

If you were named as the executor of an estate that has assets, you’ll need to visit the surrogate court in the New Jersey county in which the decedent lived. This will start the NJ legal process known as probate, and it can be initiated 10 days after someone passes away.

What happens in probate?

In New Jersey, probate is necessary only if the deceased had assets in his or her name only. Official appointment of the executor will occur in probate court with the production of the will and death certificate.

If there was no will, an administrator will be assigned to the estate in probate court. As long as there are no protests of the will, surrogate court will then give full authority to either the estate executor or administrator. You can find a full list of the executor’s duties here.

Does an estate executor get paid?

In New Jersey, estate executors or administrators can be paid for their duties, which can, in certain cases, be quite time consuming. The amount they can receive is limited to 6% of any income to the estate, plus 5% of the total gross value of the estate.*

How long does it take to probate a will?

The length of time it will take for anyone’s estate to move through the probate process is dependent on how large and complicated the estate may be. On average, moderately sized estates typically make it through to the end of NJ probate within a year. More extensive and complex estates can languish in probate for up to a decade.

For more information about New Jersey probate laws call or contact our office today. In addition, take this time to make an appointment with us to draft your own estate plan.

Image credit: Bosc d’Anjou

Can an Executor Make Changes to a Will?

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If someone close to you has recently passed away, you may be a beneficiary if they’ve left a will behind. Also more formally called a last will and testament or an estate plan, a “will” generally refers to a group of documents that detail the deceased person’s final wishes regarding their assets.

A beneficiary is a person who is to be a recipient of some or all of the decedent’s assets, whether in the form of money or property. You will be notified by the executor or executrix (female executor) of the estate if you have been named in the will. The estate executor is appointed by the testator upon creation of their will.

An estate executor is typically someone close to the testator who exhibits solid organizational skills and an ability to file paperwork correctly and on time. An executor should be responsible, level-headed and someone with a good work ethic. It is often the executor’s duty to sift through a lifetime of memorabilia and other personal effects, so testators are advised to select an executor who is relatively young and in good health.

As they will be in charge of all of the money, property and other assets that are part of the estate (anything owned by the deceased at their time of death), executors should possess enough common sense to fulfill their duties. It’s not necessary for executors to have a financial background as long as they’re honest and not afraid to ask for professional help if they need it.

Can the executor make changes to a will to make all of the beneficiaries happy?

This question sometimes arises when dealing with testamentary wills. When the testator passes away and the beneficiaries learn the details of the will, they may discover that everything is not as evenly distributed as they would like.

Example 1: A decedent with two adult children named her son executor of her estate. Although the assets were to be split relatively evenly, a provision required that the executor set up a testamentary trust for the daughter of the decedent. The daughter, upset at the terms of the trust, wished to receive her inheritance in cash. Can her brother, as executor, ignore their mother’s wishes to make his sister happy?

Example 2: A grandmother passed away leaving four grandchildren as beneficiaries. For reasons unknown, she left 70% of her money to one grandchild. Only 10% was to be split between the remaining three grandchildren.

The executor in the second example was also a family member and a beneficiary, but not a grandchild. In the interest of family harmony, can the executor make changes to the will so that each grandchild receives the same amount of money?

Answers: An executor must carry out the terms of the will – that is the point of naming an executor in the first place. To allow executors the ability to make changes would cause estate planning to be pointless. In all but a few (extremely rare) instances, testamentary wills are irrevocable, which means they may not be changed. This is especially true when the testator specified that a trust be set up for one or more of the beneficiaries.

In the situation presented in example 2 above, although the executor is still required to abide by the terms of the will, it is possible to keep peace in the family on the beneficiaries’ end. Because any beneficiary can refuse all or part of their inheritance, the grandchild who was left 70% of the decedent’s money can choose not to accept the full 70%.

When a beneficiary disclaims (refuses) all or part of what was left to them, the beneficiaries next in line will receive it. Another way of maintaining family harmony involves the 70% beneficiary claiming their inheritance and then sharing it (after the fact) with the remaining beneficiaries.

Have you chosen your executor and beneficiaries? Set up your estate plan now with Veitengruber Law.

Image credit: Conal Gallagher

Named Executor in a New Jersey Will? Your Duties Explained

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Many people don’t realize the amount of paperwork and numerous procedures that must be completed when someone dies. If you’ve recently lost a loved one, making sense of their estate plan is most assuredly very low on the list of things you’d like to focus on. However, if you’ve been named Executor in their will, you have duties that extend beyond simply grieving.

The person named as Executor is someone the deceased specifically appointed in their will. Their Executor is someone they trusted and had a lot of faith in. Executor duties include:

  1. Probating the decedent’s Last Will and Testament: New Jersey estate law requires that (most, but not all) wills proceed through probate court in order for the Executor to fulfill his or her duties (listed below).
  2. Determining precisely what assets exist in the estate: Assets include any real estate, valuable personal property, insurance proceeds, monies in any bank and/or retirement accounts, investment revenue, and anything else that can be liquidated for cash (if so directed in the decedent’s estate plan). Any items that are to be left to an heir (named in the will) must also be located and secured for later distribution.
  3. Establishing what (if any) debts were owed by the deceased at the time of death: All debts, as well as incurred costs and expenses, can be paid with the above-mentioned assets that are now property of the estate.
  4. Filing the appropriate inheritance tax return: New Jersey, along with several other states, require two separate taxes when someone dies – a NJ state estate tax and an inheritance tax. The inheritance tax is based on everyone the deceased named in their will and the relationships of the heirs to the decedent. All taxes must be paid by the Executor and can be paid using money from the estate, however, failure to pay the appropriate taxes can make you personally liable. Find out more here.
  5. Distributing the bequests listed in the will: The executor may only distribute assets to the named beneficiaries after all of the above items have been checked off the list. This ensures that there will be enough money in the estate to pay all taxes, costs, expenses and debts.

If your loved one named you Executor of their estate, they obviously felt strongly that you were up to the tasks required. Estate planning attorneys always advise clients to select an Executor or Executrix (female) who is:

  • Intelligent
  • Honest
  • Responsible
  • Level-headed
  • Decisive
  • Reliable
  • Organized
  • Confident

Additionally, Executors are usually found to be good communicators and effective mediators, as they must correspond with a multitude of people and institutions in the process of executing a will.

It is also common practice to (understandably) select an Executor who is a close family member. Most people feel more comfortable knowing that their estate will be handled by someone they know well. The best executors are able to keep the decedent’s interests in mind while simultaneously seeing that their will is handled both to the letter of the law and also expediently.

There are some people who may not serve as anyone’s Executor. These include:

  • Anyone under the age of 18; and
  • Convicted felons

New Jersey law dictates that out-of-state Executors must post a bond when the will is in probate court. This bond protects the estate and its beneficiaries and is an insurance of sort in case of any foul play or poor choices made by the Executor.

Estate Executors in New Jersey have the right to hire an attorney, an accountant (or both) to assist them with their duties. These professionals’ fees can be paid using money from the estate. If you’ve been named Executor of a complex Estate, you should at least consult with a NJ Estate Planning lawyer to be sure that you have a solid understanding of what your new job entails.

Image credit: Erik Soderstrom

Do My Brother’s Creditors Have a Claim to My Inheritance?

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If you have recently learned that you are to be the recipient of an inheritance, you may very well have a number of questions. After all, it’s not every day that one must make sense of the confusing rules and laws regarding NJ estates.

Oftentimes, you will find that the deceased has divided their estate among several of their closest relatives and/or friends. Everyone who is named in the deceased’s will is known as an heir or beneficiary. Frequently, when a parent passes away, they will leave at least part of their estate to their adult child(ren).

A question that we encountered recently involved a New Jersey estate wherein the decedent left her entire estate, including her home to be divided among her three children. The home was to be sold and the proceeds also then split between the three heirs. The rest of her estate included a moderate amount of money along with some additional valuable assets that would, again, be liquidated and divided equally.

It was discovered that one of the three beneficiaries was in over his head in debt. He had debt collectors calling him constantly, and liens were placed on any money that he may receive via judgements or inheritance. This made the other two heirs extremely nervous about the security of their own portions of the estate.

They wondered, “Will our brother’s creditors have a claim to the entire estate?”

This is a very legitimate fear, but luckily one beneficiary’s poor financial decisions will almost never affect his co-beneficiaries. While it’s true that his creditors do indeed have a cause of action against his portion of the inheritance, they have no claim whatsoever to anything that was willed to any other beneficiaries.

The exception here would be if one of the other beneficiaries was the spouse of the indebted heir, and even then, creditors would only be able to take the spouse’s portion of the inheritance in community property states, which are: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin. Alaska leaves the decision about community property up to the couple.

In New Jersey, debts that were incurred (by the beneficiary in question) jointly with a spouse who is also named as a beneficiary of the estate at hand may leave the spouse responsible for debt repayment.

Additionally, even if the debtor/beneficiary incurred his debts without his spouse as a co-signer, his spouse may still be held responsible if some or all of the debts were acquired for family necessities.

Other than those nuanced situations, an indebted beneficiary’s creditors will not be able to come after any assets willed to other heirs of the same estate. If any property is left to the indebted beneficiary with the intent that he share the physical property with you and/or one of the other heirs (where the property is not to be sold and divided), it’s in your best interest to work with an estate planning attorney in New Jersey so that your interests are protected.

Image credit: thethreesisters