A will is an important testamentary instrument. It helps provide guidance for the distribution of a testator’s property after they die. People can also name the personal representative who oversees their estate during probate proceedings. They can even choose a guardian to support their children if they die while their progeny are still dependent minors.
Wills are often the most important document included in an estate plan. Sometimes, they are the only testamentary instrument on record when someone dies. It is, therefore, of the utmost importance that people create valid and enforceable estate planning documents.
What are the basic requirements for a valid will in New Jersey?
A written instrument
People often have typed or printed wills drafted by attorneys. In a handful of scenarios, people may also create holographic or handwritten wills on their own behalf. Audio and video recordings or statements made to witnesses are typically insufficient to serve as a will after someone dies. Creating a written document, often with the assistance of a licensed estate planning attorney, is necessary for those who want to establish meaningful legacies and protect their loved ones.
A competent adult testator
Generally speaking, people have to be at least 18 years old to draft a binding will unless they are emancipated minors. They also have to be of sound mind, meaning they have testamentary capacity. That typically means they must be aware of who is in their family and who their beneficiaries are as well as what property they own. Those who are truly incapable of understanding their circumstances may not have the necessary capacity to establish a valid estate plan.
The signatures of two witnesses
Some people believe that they must have a notary sign their estate planning paperwork. That typically isn’t necessary for a will to be valid in New Jersey. However, there need to be at least two adult witnesses who watch the testator sign the document or hear them verbally attest to signing the document in their own free will previously. Those witnesses can help validate the document and the competence of the testator if there are any conflicts that arise later.
Small mistakes when establishing or updating an estate plan could lead to questions about the validity of the documents at issue. Partnering with an estate planning lawyer is one of the most effective tactics for those who want to establish a will that they know represents their wishes and shall command the respect of the probate courts after their passing.
FAQs on Basic New Jersey Will Requirements
Who can legally make a will in New Jersey?
In New Jersey, any person who is:
- At least 18 years of age
- Of sound mind (mentally competent)
- Acting of their own free will (not under duress or undue influence)
can legally create a will. There is no requirement to be a New Jersey resident.
Does a New Jersey will need to be notarized?
No, New Jersey law does not require wills to be notarized. However, having the will notarized with a self-proving affidavit is strongly recommended. A self-proving affidavit, which must be notarized, simplifies the probate process by eliminating the need to locate witnesses after the testator’s death.
How many witnesses are required for a will in New Jersey?
New Jersey law requires at least two competent witnesses for a valid will. These witnesses must:
- Be at least 18 years old
- Be mentally competent
- Sign the will in the presence of the testator
- Sign in the presence of each other
- Not be beneficiaries of the will (although this won’t invalidate the will, just the bequest to that witness)
Can I handwrite my will in New Jersey?
New Jersey does recognize holographic (handwritten) wills, but they must meet specific requirements:
- The signature and material provisions must be in the testator’s handwriting
- No witnesses are required for a holographic will
- The court must be satisfied that the document was intended to be the testator’s final will
However, handwritten wills are more likely to be challenged during probate, so a formal typed will with proper witnesses is strongly recommended.
Can I name guardians for my minor children in my New Jersey will?
Yes. In New Jersey, you can designate guardians for your minor children in your will. While the courts have final authority on guardianship decisions based on the best interests of the child, they give strong consideration to the parents’ wishes expressed in a will. When naming guardians, consider naming both primary and alternate guardians in case your first choice is unable to serve.
Do I need an attorney to create a will in New Jersey?
New Jersey law does not require an attorney to create a will. You can legally:
- Write your own will
- Use a will template or software
- Create a holographic (handwritten) will
However, consulting with an attorney is highly recommended, especially for complex estates, blended families, or specific concerns about asset distribution. A poorly drafted will may lead to disputes, additional costs, or even invalidation during probate.
Can I disinherit my spouse in my New Jersey will?
In New Jersey, you cannot completely disinherit a spouse through your will. Under New Jersey’s elective share law, a surviving spouse has the right to claim one-third of the augmented estate (which includes most of the deceased spouse’s assets) regardless of what the will states. The spouse can waive this right through a valid prenuptial or postnuptial agreement, but cannot be involuntarily disinherited.
What happens if I die without a will in New Jersey?
If you die without a will in New Jersey (intestate), your assets will be distributed according to the state’s intestacy laws:
- If you have a spouse but no descendants or parents: Your spouse inherits everything
- If you have a spouse and descendants (all from you and that spouse): Your spouse inherits everything
- If you have a spouse and descendants (some from another relationship): Your spouse gets 25% (minimum $50,000) and your descendants split the remainder
- If you have a spouse and parents (no descendants): Your spouse gets 75% and parents get 25%
- If you have descendants but no spouse: Descendants inherit everything
- If you have parents but no spouse or descendants: Parents inherit everything
- If you have siblings but no spouse, descendants, or parents: Siblings inherit everything
Can I update my will without creating a new one in New Jersey?
Yes, in New Jersey you can modify your existing will through a codicil (an amendment to your will) rather than creating an entirely new document. A codicil must:
- Be executed with the same formalities as a will (in writing, signed by you, and witnessed by two people)
- Clearly reference the original will it’s modifying
- Clearly state the changes being made
However, if making substantial changes, creating a new will that revokes all previous wills is often clearer and less likely to cause confusion or disputes.
Can I include digital assets in my New Jersey will?
Yes, you can include digital assets in your New Jersey will. Digital assets may include:
- Social media accounts
- Email accounts
- Digital photos or documents
- Cryptocurrency
- Online financial accounts
- Digital businesses or websites
It’s advisable to maintain a separate, secure inventory of your digital assets with access information and specific instructions for each account, then reference this document in your will rather than including sensitive login details in the will itself, which becomes public during probate.
What is a self-proving will in New Jersey?
A self-proving will in New Jersey is a will that includes a special notarized affidavit signed by the testator and witnesses at the time of will execution. This affidavit confirms that all legal formalities were observed when the will was signed. The primary benefit is that during probate, the witnesses don’t need to appear in court to testify about the will’s authenticity, which streamlines the probate process.
Can I name a non-resident executor for my New Jersey will?
Yes, you can name a non-resident executor in your New Jersey will. However, there are some restrictions:
- If the executor is not a New Jersey resident, they must appoint a resident agent for service of process
- The executor must be at least 18 years old and of sound mind
- The executor cannot be a convicted felon
- Banks or trust companies from other states have additional requirements to serve as executors in New Jersey
How do I revoke a will in New Jersey?
In New Jersey, you can revoke your will in several ways:
- By creating a new will that explicitly revokes all previous wills
- By physically destroying the will (tearing, burning, etc.) with the intention to revoke it
- By directing someone else to destroy it in your presence
- By executing a written revocation with the same formalities required for making a will
Simply creating a new will generally revokes prior wills automatically if it contains language stating “I hereby revoke all previous wills and codicils,” which is standard in most will documents.
Are there any assets that cannot be distributed through a will in New Jersey?
Yes, certain assets bypass the will and probate process in New Jersey:
- Assets with designated beneficiaries (life insurance, retirement accounts, transfer/pay-on-death accounts)
- Jointly owned property with right of survivorship
- Assets held in a living trust
- Property subject to valid transfer on death designations
- Certain pension benefits
These assets transfer directly to named beneficiaries or surviving co-owners regardless of what your will states.
How long is a will valid in New Jersey?
A properly executed will in New Jersey remains valid indefinitely until it is:
- Revoked by the testator
- Replaced by a newer will
- Invalidated by a court
However, it’s advisable to review your will every 3-5 years or after major life events such as:
- Marriage or divorce
- Birth or adoption of children
- Death of beneficiaries or executors
- Significant changes in assets
- Relocation to another state
What happens to my will if I get divorced in New Jersey?
In New Jersey, divorce affects your will in specific ways:
- Any provisions in your will that benefit your ex-spouse are automatically revoked upon divorce
- Any appointment of your ex-spouse as executor, trustee, or guardian is automatically revoked
- The will itself remains valid; only provisions relating to your ex-spouse are affected
- If you wish to include your ex-spouse in your will after divorce, you would need to create a new will after the divorce is finalized
Are there any special provisions for charitable giving in a New Jersey will?
New Jersey allows you to make charitable gifts through your will with no special requirements beyond naming the charity clearly and specifying the gift. Benefits of charitable giving through your will include:
- Potential estate tax benefits for larger estates
- No limitation on the amount you can leave to qualified charities
- Option to create charitable trusts for more complex giving strategies
To ensure your charitable intent is honored, include the charity’s legal name, address, and tax ID number in your will rather than just a general description.
Can I include funeral instructions in my New Jersey will?
While you can include funeral instructions in your New Jersey will, it’s not recommended as the primary location for these directions because:
- The will is often not located or read until after funeral arrangements have been made
- By law, your funeral agent (if designated) or next of kin has the legal authority to make funeral decisions
Instead, consider:
- Creating a separate funeral directive document
- Sharing these wishes with your executor and family members
- Pre-arranging and pre-paying for funeral services
- Designating a funeral agent using New Jersey’s Appointment of Funeral Agent form
Can a will be contested in New Jersey?
Yes, a will can be contested in New Jersey, but only by interested parties (typically those who would inherit under the will or intestacy) and only on specific legal grounds:
- Lack of testamentary capacity (the testator wasn’t of sound mind)
- Undue influence (someone improperly pressured the testator)
- Fraud or forgery
- Improper execution (will wasn’t signed according to legal requirements)
- Revocation (a more recent valid will exists)
There are strict time limits for contesting a will in New Jersey – typically within four months of probate being granted (six months for out-of-state interested parties).
Explore Your Will Options with Cosner Law
At Cosner Law Group, we understand that creating a will is one of the most important steps you can take to protect your loved ones and ensure your wishes are honored. Our experienced team of estate planning attorneys specializes in New Jersey will and trust law, providing personalized guidance through every stage of the process. We take the time to understand your unique circumstances, explain complex legal concepts in plain language, and develop comprehensive solutions tailored to your specific needs. Whether you’re drafting your first will, updating an existing estate plan, or navigating probate after losing a loved one, Cosner Law Group is here to provide the compassionate counsel and legal expertise you deserve. Contact us today to secure your legacy and gain peace of mind knowing your family’s future is protected.