The Essential Guide to Creating a Will in New Jersey and New York

Creating a will is one of the most important steps you can take to ensure that your assets are distributed according to your wishes after your passing. Despite its significance, many people delay making a will, often because they believe it’s too complicated or unnecessary. However, having a will in place provides clarity, minimizes legal disputes, and gives you peace of mind knowing that your loved ones will be taken care of.

This guide will walk you through everything you need to know about creating a will in New Jersey and New York, including legal requirements, key steps, and common mistakes to avoid.

What Is a Will and Why Do You Need One?

A will is a legal document that outlines how your property and assets should be distributed after your death. It also allows you to appoint an executor to carry out your wishes and designate a guardian for minor children.

Without a will, your estate will be distributed according to state intestacy laws. This could result in unintended outcomes, such as assets going to distant relatives or the state deciding who will take care of your children. By creating a will, you take control over these decisions, ensuring that your estate is managed according to your specific wishes.

Key Elements of a Valid Will

Each state has specific legal requirements that must be met for a will to be valid. In both New Jersey and New York, a valid will must meet the following criteria:

Legal Capacity

You must be at least 18 years old and of sound mind. This means you must fully understand the nature of your assets and the consequences of your decisions regarding their distribution.

Written Document

Wills must be written, with typed documents being the preferred and most legally recognized format. Handwritten wills may be valid in some cases, but oral or video-recorded wills are generally not accepted.

Signature Requirement

The testator, or the person creating the will, must sign the document. If the testator is unable to sign due to physical limitations, they may direct someone else to sign on their behalf in their presence.

Witness Requirements

• New Jersey: The will must be signed in the presence of two witnesses.
• New York: The will must be signed in the presence of two witnesses, who must also sign the document within 30 days of each other.

Clear Intent

The document must explicitly state that it is intended to serve as the testator’s last will and testament. Ambiguity in language or intent may lead to disputes and challenges during probate.

Steps to Create a Will in New Jersey and New York

Step 1: Take Inventory of Your Assets

Before drafting your will, create a comprehensive list of your assets. This should include real estate, bank accounts, investments, valuable personal belongings, and digital assets such as cryptocurrency or online accounts. Having a clear inventory will help ensure nothing is overlooked in your estate planning.

Step 2: Choose Your Beneficiaries

Decide who will inherit your assets. Beneficiaries can include family members, friends, or charitable organizations. You may also specify how and when certain assets should be distributed, such as delaying inheritance until a beneficiary reaches a certain age.

Step 3: Appoint an Executor

An executor is the person responsible for carrying out the terms of your will. Choose someone you trust who is organized and capable of handling financial and legal matters. It’s also a good idea to name an alternate executor in case your primary choice is unable to serve.

Step 4: Name Guardians for Minor Children

If you have children under 18, you should appoint a guardian who will care for them in the event of your passing. Without a named guardian, the court will make this decision, which may not align with your wishes.

Step 5: Draft the Will

Work with an attorney to draft your will. While online templates exist, they may not account for your unique financial and family circumstances. An estate planning attorney can ensure your will is legally sound and tailored to your needs.

Step 6: Sign and Witness the Will

Follow the specific signing and witnessing requirements in your state to ensure the will is legally binding. Failing to do so can lead to complications during probate.

Step 7: Store the Will Safely

Once completed, store your will in a secure location such as a fireproof safe or with your attorney. Inform your executor of its location so they can access it when needed.

Special Considerations in New Jersey and New York

New Jersey

New Jersey law allows for self-proving wills, meaning a testator and witnesses can sign an affidavit at the time of signing. This allows the will to be admitted to probate without requiring witnesses to testify in court. Additionally, New Jersey imposes an inheritance tax on certain beneficiaries, such as distant relatives or non-relatives.

New York

In New York, wills must be submitted to the county Surrogate’s Court for probate. Additionally, New York law grants a spousal right of election, meaning a surviving spouse is entitled to a portion of the estate, even if the will states otherwise.

Common Mistakes to Avoid

Not Updating Your Will

Major life events, such as marriage, divorce, the birth of a child, or the acquisition of significant assets, may require updates to your will. Regularly reviewing and updating your will ensures it remains relevant.

Overlooking Digital Assets

Many people forget to include instructions for managing online accounts, social media profiles, and digital currencies. Failing to do so can create confusion and difficulty in accessing these assets after your passing.

Failing to Plan for Contingencies

Name alternate beneficiaries and executors in case your primary choices are unable to serve. Without backup choices, the court may need to make decisions on your behalf.

Relying on DIY Wills

Using generic online templates can lead to errors, omissions, or provisions that may not comply with state laws. Consulting an attorney ensures your will is legally enforceable and customized to your specific needs.

What Happens If You Die Without a Will?

If you pass away without a will (intestate), state laws will determine how your assets are distributed:

• New Jersey: If there is a surviving spouse, they typically inherit most or all of the estate, depending on whether there are children or other relatives.
• New York: The spouse inherits the first $50,000 and half of the remaining estate, with the rest divided among the children.

Without a will, the probate process can become lengthy, costly, and may result in outcomes that do not align with your wishes.

Do You Need a Lawyer to Create a Will?

While it is possible to draft a will on your own, working with an experienced estate planning attorney provides significant benefits. An attorney ensures your will complies with state laws, is clearly written to prevent disputes, and incorporates tax and asset protection strategies. Proper legal guidance can make a critical difference in ensuring your estate plan is legally sound and effective.

Final Thoughts

Creating a will is a vital step in securing your family’s future and ensuring that your wishes are honored. Understanding the legal requirements in New Jersey and New York, along with working with an experienced attorney, can help you create a will that provides peace of mind for you and your loved ones.

If you’re ready to create or update your will, our experienced estate planning attorneys are here to help. Contact us today for personalized guidance and support.

Mitchell C. Beinhaker, Esq. is a business lawyer and estates attorney who runs a solo legal & consulting practice representing business owners, entrepreneurs, executives, and professionals. Through his 30+ years of experience, Mitchell has handled business development, marketing, firm management, along with business transactional work for clients of the firm. He has extensive experience with corporate governance, commercial transactions, real estate, and risk analysis. Using his years of practical experience, he drafts contracts, negotiates purchases, and can manage outside counsel for any corporate situation. For business owners and executives, he creates and implements estate plans, along with succession plans to help companies continue for future generations. 

Mitchell is the co-author of 10 Ways to Get Sued by Anyone & Everyone:  the small business owners guide to staying out of court, available in paperback and kindle from Amazon.

If you need legal help with any of our services, contact our office for a free consultation.  You can email us at info@beinhakerlaw.com.  To learn more about Mitchell and his practice, visit beinhakerlaw.com.

Beinhaker Law and Mitchell C. Beinhaker, Esq. do not guarantee the accuracy of any information provided in this article.  Its not to be construed as advice of any kind.  Be sure to check with your local professionals before making any decisions.