Basic Estate Planning Documents: The basic estate planning documents are a Will, a Power of Attorney and a Living Will. The primary purpose of these documents is to make sure your wishes are carried out upon your death or if you become incapacitated.
Who Inherits Your Estate: If you die without a Will, New Jersey’s statutes determine who receives your estate. For example, if you are survived by your spouse, and you have children from a previous marriage, your estate will be split between your spouse and your children. If you have a Will, you control who receives your estate.
Who Administers Your Estate: If you die without a Will, someone will need to go to the County Surrogate and obtain letters of administration of your estate. This person may or may not be the person whom you would wish to administer your estate and this person will be entitled to commissions paid from your estate and will require a bond paid from your estate. If you have a Will, you control who administers your estate.
Inheritance By Minor Children: If you do not have a Will, and you have minor children, the person who is appointed administrator of your estate will need to designate a person to manage your children’s inheritance until they reach the age of 18. If you have a Will, you can specify the person who will manage your children’s inheritance, the manner in which the money is to be spent, and the age at which your children will receive the money directly.
Guardian For Minor Children: If you do not have a Will, someone will need to obtain guardianship of your minor children. This may require a court proceeding, and the costs of this proceeding may be paid out of your estate. If you have a Will, you can specify who is to be guardian of your minor children and the appointed guardian will not have to file a court proceeding, but will merely need to go to the County Surrogate and sign some papers to confirm the guardianship.
Power of Attorney: A Power of Attorney is used to designate someone to take control of your finances in the event you become incapacitated. Without a power of attorney, a guardianship proceeding would need to be filed with the Court. A power of attorney should contain the statutory language to conduct banking transactions and should grant gifting authority for estate planning and Medicaid planning.
Living Will: A Living Will (also called an Advanced Directive for Healthcare) is used to designate someone to make decisions about your medical treatment and termination of treatment in the event you are unable to do so. Without an advanced directive, no one may know what your wishes are with respect to your medical treatment, and if even if they do know, they may need a Court Order to carry out your wishes.
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