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Creating a Will vs. Trust in New Jersey


Navigating the complexities of estate planning can be a daunting task, particularly in New Jersey where specific laws and statutes govern the creation and execution of wills and trusts. These legal instruments are essential in dictating how one’s assets are managed and distributed in the event of your death. Whether you are contemplating how to preserve a family heirloom, minimize tax implications or simply ensure your assets are allocated according to your wishes, here’s a breakdown of general things to consider.

Not having the right expertise can make estate planning difficult. If this is your case, consider working with a financial advisor.

How a Will Works in New Jersey

Wills play an important in estate planning. This legal document allows individuals to dictate the distribution of their assets after their passing.

In New Jersey, the execution of a will is governed by Title 3B of the New Jersey Statutes. This legal framework ensures that the intentions of the deceased are upheld, providing a clear roadmap for the distribution of their estate. Creating and validating a will in New Jersey involves three general steps:

  1. The testator must be at least 18 years old and possess the mental capacity to understand the implications of their estate decisions.
  2. The will must be in written form.
  3. The testator must sign the document in the presence of two witnesses, who also sign, affirming the testator’s intent and mental fitness.

While notarization is not a statutory requirement in New Jersey, it does create a “self-proving” will, which simplifies the probate process by providing prima facie evidence that the will is valid and correctly executed.

How a Trust Works in New Jersey

A couple researching the requirements to create a will and a trust in New Jersey.

In New Jersey, a trust establishes a fiduciary relationship where the trustee, designated by the trustor (the person who creates the trust) manages the assets for the beneficiaries’ benefit. It’s important to note that the trustee has a fiduciary duty, which means that they are required to act in the best interests of the beneficiaries.

In New Jersey, residents can choose from various trusts, which include revocable to irrevocable trusts, as well as living and testamentary trusts. Each type of trust serves different purposes, including asset protection, estate planning, tax efficiency, charitable giving and the controlled distribution of assets to beneficiaries.

Differences Between a Will and Trust

In New Jersey, as in many other jurisdictions, there are key differences between a will and a trust when it comes to estate planning. Here are four common distinctions between the two:

  1. Probate:
    • Will: Assets distributed through a will typically go through the probate process, which is a court-supervised procedure for validating the will and distributing assets to beneficiaries. Probate can be time-consuming, costly and public.
    • Trust: Assets held in a trust generally do not go through probate, as they are already owned by the trust and managed by the trustee. This can lead to faster distribution of assets and increased privacy, as trust administration is not typically a matter of public record.
  2. Privacy:
    • Will: Wills become public records during the probate process, which means that anyone can access information about your assets, beneficiaries and debts.
    • Trust: Trusts provide greater privacy since they do not go through probate, and their terms are generally not disclosed to the public.
  3. Flexibility:
    • Will: Wills are relatively straightforward documents that allow you to specify how your assets should be distributed upon your death. However, they may not offer as much flexibility for complex estate planning strategies.
    • Trust: Trusts can be highly flexible and customizable. You can set specific conditions for distributing assets, designate successor trustees, provide for beneficiaries with special needs and create ongoing management plans for assets.
  4. Effectiveness for certain situations:
    • Will: Wills are suitable for individuals with simpler estates and straightforward distribution plans. They may not be the best option for minimizing estate taxes or providing long-term asset management.
    • Trust: Trusts are often recommended for individuals with larger estates, blended families, minor children, beneficiaries with special needs, or specific asset management goals. They can help minimize estate taxes, avoid probate and provide ongoing control over asset distribution.

Ultimately, the choice between a will and a trust in New Jersey (or any other jurisdiction) depends on your specific circumstances, estate planning goals, asset portfolio, family dynamics and personal preferences. It’s essential to consult with an experienced estate planning attorney to determine the most suitable approach for your needs.

What to Include in an Estate Plan

The concept of estate planning can feel overwhelming, but breaking it down into its core components makes it more approachable. At its simplest, a comprehensive estate plan should include a will, which clearly states your wishes regarding asset distribution. Trusts, another key element, can manage assets for your beneficiaries, often providing tax advantages and protection from creditors.

It can also be imperative to establish a durable power of attorney, appointing a trusted person to oversee your legal and financial affairs if you’re unable to do so. Health care directives ensure that your medical treatment preferences are followed while keeping beneficiary designations on policies and accounts updated prevents outdated instructions from causing issues.

Estate planning is not just about protecting your assets; it’s about providing clarity and peace of mind for both you and your family.

Bottom Line

A couple reviewing an estate plan checklist that includes creating a will and a trust in New Jersey.

Estate planning in New Jersey is a process that involves the careful crafting of wills and the strategic use of trusts to manage and protect one’s legacy. A will can ensure that your wishes are honored posthumously, while a trust can offer more flexibility and privacy to safeguard assets. Trusts can serve different objectives, ranging from tax benefits to preserving government aid eligibility for beneficiaries. Understanding the differences between wills and trusts, and the specific legal requirements in New Jersey, will help you create an effective estate plan.

Tips for Estate Planning

  • A financial advisor can help you create an estate plan for your specific needs and goals. SmartAsset’s free tool matches you with up to three vetted financial advisors who serve your area, and you can have a free introductory call with your advisor matches to decide which one you feel is right for you. If you’re ready to find an advisor who can help you achieve your financial goals, get started now.
  • Before deciding to go through the estate plan process on your own, make sure you understand the potential dangers of DIY estate planning.

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