Estate Planning FAQs

Q&a About Estate Planning In New Jersey

The estate planning practice at Smith & Gaynor, LLC, assists Morristown and North Jersey residents in the areas of wills, trusts, healthcare directives, business succession, probate, and more. Below we address some general questions and concerns clients often have when they come to our office. For specific information regarding your unique situation, please contact us to schedule a consultation.

What's the difference between a will and a trust?

Wills and trusts serve different purposes, but they can work together to create a complete estate plan. One difference between a will and a trust is that a will goes into effect only after you die, while a trust takes effect as soon as you create it. Another important difference between a will and a trust is that a will must go through probate (which is a public legal proceeding), while a trust does not. Many people use trusts to save beneficiaries time and money, and to maintain privacy.

What is a codicil?

A codicil is an amendment to a will. It must be written, signed, and witnessed the same way as the will, and should be kept with the original will. You may want to update or change your will if your marital status changes, a child or grandchild is born, there is a death in the family, your wishes on who should receive property change, the value of your assets change substantially, or tax laws change.

What happens if I die without a will or trust?

If you die intestate (without a will), New Jersey's laws of succession and distribution will determine who receives your property by default. The state's plan may or may not reflect your actual wishes, and some built-in legal protections may not be necessary in a harmonious family setting. A will allows you to alter the state's default plan to suit your personal preferences.

What is a personal representative?

If you have a will, a personal representative (also known as an executor or administrator) is the person who oversees the payment of your debts and the distribution of your assets according to your will. Most people choose their spouse, an adult child, a relative, a friend, or a trust company to fulfill this duty. If no personal representative is named in a will, a judge will appoint one to oversee the distribution of your assets.

What is a trustee?

If you have a trust, you may designate a trustee to manage the trust's assets in the best interests of the beneficiary or beneficiaries. The trustee is considered a fiduciary, and therefore must adhere to a high standard of care with respect to the trust. Therefore, you cannot force a person to become a trustee simply by naming him or her in a trust document or will. You must make sure the trustee is able to comply with the terms of the trust.