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

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Can I Write My Own Will or Should I Hire an Attorney?

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Just the thought of preparing your last will and testament (also known simply as your “will” or your “estate plan”) is enough to put some people on edge. That reaction is completely understandable given the nature of the information contained in said documents. Being uncomfortable, however, is not reason enough to avoid doing something so important.

A question on this topic that many people ask themselves is, “Can I write my own will or do I need an attorney’s help?” The best answer to this question is that it depends on your specific situation.

Legally binding wills can be drafted without an attorney’s help by using estate planning software to walk you through the process. You may be able to go the DIY route, but only if you need a basic, simple will, you don’t have a lot of assets and you have a small, uncomplicated family.

Anything beyond the most basic wills are best handled by a qualified estate planning professional. Too many people have made seemingly small blunders on their estate planning paperwork, costing surviving family members a significant amount of money, stress and angst.

If you have young children (and/or a complicated family), own your own business (especially if you are a co-owner), have a significant amount of investments, assets, debts or if you think there’s a strong possibility that someone may contest your will, you’ll be better off working with an attorney to come up with the will that works for you and all of your unique life circumstances.

With your estate planning attorney, you’ll work in tandem to create not only a will but a number of other important documents like a living will and a health care directive. Having an experienced professional to guide you will ensure that you avoid making mistakes that would likely end up causing a gigantic amount of trouble for your loved ones after you’ve passed away.

It can be easy to put off setting up your estate planning paperwork because, after all, it doesn’t affect you directly. You must take into consideration the aftermath you’ll leave behind if you die without a will in New Jersey. Your family members will not have the proper time to adequately grieve your passing if they have to spend all of their time figuring out what to do with your assets.

Don’t leave a bunch of questions for your family and friends to puzzle over. If you haven’t done so yet, make a promise to yourself to write down your last wishes as soon as possible. Take that list with you to your NJ attorney meeting. After your estate plan has been completed, you’ll feel a weight lifted off your shoulders – even if you never realized the weight was there.

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Estate Planning Basics: What You Need to Know to Get Started

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The term ‘estate planning‘ can make preparing your will sound a lot more daunting than the process really is. In fact, some of our clients come to us without understanding that your estate is simply everything you own. So, estate planning is essentially just making plans for what will happen to your real estate property, personal items, investments, life insurance policies and anything else you own after you pass away.

The process of setting up your estate plan is commonly referred to as ‘writing your will.’ Along with the fact that not very many people enjoy thinking about and planning for their own death, the process in itself can seem like it might be complicated.

The good news is that the reality of estate planning is quite simple for most people. At Veitengruber Law, we like to start getting to know our estate planning clients by having them fill out a questionnaire. Ideally, clients will return the questionnaire to us before their consultation so that we have time to get a feel for your overall financial details. Alternatively, you can bring the (completed) questionnaire along with you to your first appointment.

We will help you to determine which of the following documents that are appropriate for your needs:

Last Will and Testament – Also referred to as your ‘will,’ this document’s purpose is to let all of your survivors know how you want your property to be divided after your death. You’ll need to name someone to carry out your wishes (an executor) and you will have to decide who should get what. One of the tougher decisions to be made in your will involves custody of your children (if applicable).

Durable Power of Attorney – Another extremely important facet of your estate plan, your Durable Power of Attorney names someone to make decisions for you regarding your finances if you become unable to make sound decisions for yourself. This document will name someone as your ‘agent’ in case you become ill and/or incapacitated. Your agent is automatically your spouse if you are married. If you aren’t married, you definitely need a Durable Power of Attorney to ensure that your finances will be responsibly managed if you become unable to make smart decisions for yourself. This document expires when you do, so your agent will not make any decisions after your death unless s/he is also your executor.

Living Will – This document will set out any specific health care directives that you wish to be followed if a time comes when you are not able to communicate your wishes verbally. Some things included in your living will are:

  • What (if any) life extending procedures do you wish to be carried out?
  • Do you want to be resuscitated or would you like doctors to follow a DNR protocol (Do Not Resuscitate)?
  • Are there certain situations in which you would want doctors to stop life saving treatments?
  • Would you want to be tube fed or be placed on a ventilator? For how long?
  • Do you want to donate any or all of your organs for donation or scientific study?

Along with the above documents, we will also talk to you about your life insurance coverage, especially if you have a family who is dependent on you. Call us today or fill out our quick info form to get your estate plan started.

 

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Dying Without a Will in New Jersey: What Happens?

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If you have recently lost someone close to you and dear to your heart, we realize that you are undoubtedly weighed down by sadness and grief. Unfortunately, if the deceased wasn’t able to leave a Last Will and Testament, this time in your life just got incrementally more difficult.

When anyone dies without a will in New Jersey, they are said to have died “intestate.” This is the legal term for a deceased person who has not left any testamentary documents regarding the distribution of their assets. Some people mistakenly believe that an intestate decedent’s property will be taken by the state in which they reside. While that is not true, there are state laws that govern who the property should be divided between, and who should make decisions for the estate.

It’s important to know that not all assets are created equal. In fact, many types of assets/property are not passed from person to person via Last Will and Testament at all. These include:

  • Proceeds from a life insurance policy
  • Funds in an IRA, 401(k) or retirement account
  • Property named in a living trust
  • Funds in a POD bank account (payable on death)
  • Real estate, bank accounts, etc held in joint tenancy
  • Stocks, real estate or vehicles with a TOD (transfer on death) deed or title

The above assets will be distributed according to their individual documentation. They should each name a beneficiary or have a joint owner, making their transfer rather clear. Again, the above assets are never included as part of a will, and are inherited outside of the deceased’s estate.

In order to transfer ownership of the rest of the decedent’s assets and property, NJ state law dictates, using “intestate succession” laws to do so.

Since there is no will (in which an executor would have been named), the New Jersey Surrogate’s Court will appoint such a person so that the estate can be properly and fairly distributed. The NJ Surrogate’s Court typically chooses someone from the following list, in order of preference: surviving spouse, surviving partner of a civil union, children, grandchildren, parents, siblings, nieces, nephews.

Ultimately, the person who is selected as the estate’s administrator (executor) will be responsible for the fair and legal distribution of the estate to its heirs and creditors. S/he may be summoned to Surrogate’s Court to explain how or why  assets or property were distributed in a certain way. If mistakes are made by the estate administrator, s/he may be forced to pay for any losses that were suffered by the estate’s heirs and creditors.

Because it is such a big responsibility, many estate administrators choose to hire and work with an attorney during the process of distributing the estate. This is acceptable, and executors are permitted to use money from the estate to pay for this expense.

Distribution of the estate money and property must be completed in a very specific order so as to be legally correct. Before any heirs or survivors receive anything, all outstanding creditors and taxes must be paid. Following this distribution order is critical, because if it is later found that the executor made distribution errors, there’s a good chance s/he would be held personally responsible.

Beyond paying any and all creditors and taxes due, New Jersey laws state who shall be eligible to inherit parts of the estate of an intestate decedent. For more information about the New Jersey laws surrounding death without a will, call or contact our office today. In addition, strongly consider having Veitengruber Law draw up your own Estate Plan, so that your loved ones don’t have questions and conflict after you pass.

 

Image Credit: Alex Eflon

 

When Should I Make Changes to my Will?

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We understand just how uncomfortable it can be to give much thought to your own mortality. Sometimes, however, it’s necessary to put your discomfort aside in order to do the right thing, which, in this case, is setting up an Estate Plan.

Otherwise referred to as a “will” or Last Will & Testament, having an Estate Plan in place means that your loved ones will have the guidance they need after your passing in order to make decisions on your behalf. Keeping your Estate Plan updated means that you may be able to keep your dearest family members and friends out of major disagreements that can be extremely harmful during the mourning period.

Assuming that you already have a will in place, many people wonder if and when it is necessary to make changes to their Estate Plan. After all, our world is an ever-changing place, and naturally, so are our lives. What we set into place five years ago may be obsolete today.

Consider making formal changes to your New Jersey Estate Plan if:

  • Your love life blossoms – Whether you get married or enter into a long-term committed relationship, it’s important to add your significant other to your will, because without doing so, your legal partner has a right to half of your property and a partner that is not legally recognized will get nothing. If you object to either of those situations, you need to put it in writing.

 

  • A marriage ends in divorce – Although most states automatically revoke any property rights from a former spouse as soon as a divorce is finalized, some states do not. It’s important to check. Also, it’s entirely possible that you may still want to include your ex-spouse in your will, especially if you have children together. If that’s the case, you may have to “write them back in.” You may also need to make changes if someone named in your will gets divorced – for example if your daughter divorces her husband, you may no longer want him to be named in your will.

 

  • You hear the pitter patter of little feet – Whether you give birth to, adopt, or gain step-children by marriage, you’ll want to ensure they are cared for in the event of your passing. Children are automatically given certain rights to some of your property, so if you want to be specific about who will receive what, be sure to put that in your Estate Plan. Also note that step-children are not automatically entitled to inherit anything from you, but most step-parents do want to include them.

 

  • You have a change of heart – Let’s face it – things happen in life, and that’s putting it mildly. Oftentimes, people change their mind about who they’d like to leave part or all of their property to – due to special or unforeseen circumstances not listed above. The important thing is making sure it’s in writing, because otherwise, you’ll be shaking your fist from beyond.

 

But How Do I Change My Will?

You can make changes to your will by speaking to an attorney who specializes in NJ Estate Planning. He will help you modify your paperwork by adding a codicil or by writing a completely new Estate Plan. A codicil is an amendment or a “PS” to an Estate Plan document that overwrites part of your will or adds new provisions. If you decide to add a codicil, it must be signed and legally witnessed exactly as your original Estate Plan was in order to be legal. Today, it is usually much easier to create a completely new Estate Plan, stating in which that you revoke all past wills and codicils. This helps to avoid any confusion regarding which papers are most current and accurate at the time that they become necessary.

Image credit: Walter