What Qualifies as a Last Will and Testament? Part 1
What Qualifies as a Last Will and Testament? Part 1
In my first conversation with family members after a loved one dies, not infrequently someone will tell me that the decedent (person who died) verbally expressed his or her wishes about how they wanted their estate to be distributed. In some cases there is no will and in others there is something in writing but the person tells me it contains directions different than the verbal instructions.
When someone dies, state law provides a method by which that person’s assets are to be distributed. We can pass our estate on to the persons or organizations that we wish, however, there needs to be an orderly manner in which to do that. Of course, after I die I won’t be able to then say or direct that distribution. A will accomplishes that task. But, how do we know what I really want? And what if I change my mind?
New Jersey probate law sets out the elements of a will. A will must be in writing, signed by the testator (person making the will) or in the testator’s name by someone else but in the testator’s conscious presence and at the testator’s direction. The document must also be signed by at least two persons who either witnessed the signing of the will or witnessed the testator’s acknowledgment of that signature.
If the document does not meet these requirements, it may still be considered valid as “a writing intended as a will” if it does not contain two witness signatures. In that case, the material parts of the document must be in the testator’s handwriting and he/she must sign the document.
One thing that is clear then, is that verbal instructions claimed to be given by the decedent to another person does not constitute a will under New Jersey law. That’s when the intestacy laws – which provide what happens to an estate if there is no will – apply.
How easy or difficult it is to probate a will is dependent on how closely the written document follows the law’s requirements. I’ll get into that next week.