What documents make up a New Jersey estate plan?

Commonly a will (N.J.S.A. 3B:3-2), often with a revocable trust (N.J.S.A. 3B:31-18; N.J.S.A. 3B:31-43), beneficiary designations on insurance and retirement accounts, a durable power of attorney (N.J.S.A. 46:2B-8.2) and an advance directive for health care — a proxy directive naming a health care representative and an instruction directive stating treatment wishes (N.J.S.A. 26:2H-58). Each governs something different; what you need is a question for a licensed New Jersey attorney of your choosing.

Does a New Jersey trust need to be signed before witnesses?

New Jersey's Uniform Trust Code asks that a trust be created by a written instrument, a written declaration or a written exercise of a power (N.J.S.A. 3B:31-18), that the settlor have capacity and indicate an intention to create it, that the trust have a definite beneficiary (or be a charitable, animal or purpose trust), that the trustee have duties to perform, and that the same person not be the sole trustee and sole beneficiary (N.J.S.A. 3B:31-19); it names no witnesses or notary for a trust created during life. A will, by contrast, is in writing, signed by the testator and signed by at least two witnesses (N.J.S.A. 3B:3-2), and a trust may be created by will (N.J.S.A. 3B:31-18).

Does a New Jersey trust avoid probate?

Property titled to the trustee during the settlor's life passes under the trust's terms without an estate administration; property outside the trust passes by will or by intestacy (N.J.S.A. 3B:5-3; N.J.S.A. 3B:5-4) through the Surrogate's Court, by beneficiary designation or by survivorship. Avoiding probate does not avoid the settlor's creditors — after the death a trust that was revocable at the death answers for them, the costs of administration, the funeral expenses and the family's claims to the extent the probate estate is inadequate (N.J.S.A. 3B:31-39(a)(3)) — nor the transfer inheritance tax, which reaches a transfer in trust intended to take effect at death (N.J.S.A. 54:34-1); New Jersey imposes no estate tax on a death on or after January 1, 2018 (N.J.S.A. 54:38-1).

New Jersey Estate Planning: Wills, Trusts and Probate

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The building blocks of a New Jersey estate plan

A New Jersey will

A will directs who receives your property and names a personal representative, but it generally must pass through New Jersey probate to take effect. It can also name guardians for minor children.

A revocable living Trust

A revocable living Trust holds your assets during life and passes them to your beneficiaries at death — generally outside probate — while you keep full control and can change it anytime. It is an administration and probate-avoidance tool, not asset protection.

Probate

Probate is the process that settles a decedent's estate — admitting the will, paying creditors, and distributing what remains. In New Jersey the county Surrogate admits the will after ten days and issues the letters (N.J.S.A. 3B:3-17; N.J.S.A. 3B:3-22), the personal representative mails the notice of probate within 60 days (R. 4:80-6) while the creditors' nine months run from the death (N.J.S.A. 3B:22-4); a small estate may be collected by affidavit (N.J.S.A. 3B:10-3), and many plans aim to reduce or avoid probate.

Asset protection

New Jersey protects some property by statute — a tenancy by the entirety, retirement plans and accounts, life insurance proceeds and a veteran's residence (N.J.S.A. 46:3-17.2; N.J.S.A. 25:2-1; N.J.S.A. 17B:24-6; N.J.S.A. 2A:17-17.4) — but it has no general homestead exemption, each depends on facts, timing and titling, and a revocable Trust does not by itself shield assets from creditors (N.J.S.A. 3B:31-39). This is an area to review with a New Jersey attorney.

Powers of attorney & advance directives

A complete plan usually also includes a durable power of attorney (N.J.S.A. 46:2B-8.2), a proxy directive naming your health care representative (N.J.S.A. 26:2H-58) and an instruction directive stating your treatment wishes (N.J.S.A. 26:2H-58(b)) — so someone you trust can act for you if you cannot, rather than a guardian the court appoints.

Which plan is right in New Jersey?

There is no single best plan for everyone — the right mix of will, Trust, and directives depends on your assets, your family, and your goals. This page is general information, not legal advice. A free role check can show you where you stand, and a New Jersey attorney can recommend what fits your situation.

General information about New Jersey law, not legal advice.

Frequently asked questions

What documents make up a New Jersey estate plan?: Commonly a will (N.J.S.A. 3B:3-2), often with a revocable trust (N.J.S.A. 3B:31-18; N.J.S.A. 3B:31-43), beneficiary designations on insurance and retirement accounts, a durable power of attorney (N.J.S.A. 46:2B-8.2) and an advance directive for health care — a proxy directive naming a health care representative and an instruction directive stating treatment wishes (N.J.S.A. 26:2H-58). Each governs something different; what you need is a question for a licensed New Jersey attorney of your choosing.
Does a New Jersey trust need to be signed before witnesses?: New Jersey's Uniform Trust Code asks that a trust be created by a written instrument, a written declaration or a written exercise of a power (N.J.S.A. 3B:31-18), that the settlor have capacity and indicate an intention to create it, that the trust have a definite beneficiary (or be a charitable, animal or purpose trust), that the trustee have duties to perform, and that the same person not be the sole trustee and sole beneficiary (N.J.S.A. 3B:31-19); it names no witnesses or notary for a trust created during life. A will, by contrast, is in writing, signed by the testator and signed by at least two witnesses (N.J.S.A. 3B:3-2), and a trust may be created by will (N.J.S.A. 3B:31-18).
Does a New Jersey trust avoid probate?: Property titled to the trustee during the settlor's life passes under the trust's terms without an estate administration; property outside the trust passes by will or by intestacy (N.J.S.A. 3B:5-3; N.J.S.A. 3B:5-4) through the Surrogate's Court, by beneficiary designation or by survivorship. Avoiding probate does not avoid the settlor's creditors — after the death a trust that was revocable at the death answers for them, the costs of administration, the funeral expenses and the family's claims to the extent the probate estate is inadequate (N.J.S.A. 3B:31-39(a)(3)) — nor the transfer inheritance tax, which reaches a transfer in trust intended to take effect at death (N.J.S.A. 54:34-1); New Jersey imposes no estate tax on a death on or after January 1, 2018 (N.J.S.A. 54:38-1).