What Qualifies as a Last Will and Testament? Part 3

In my last 2 blog posts I have explained the elements of a last will and testament.  New Jersey law clearly sets out the requirements which, if followed, make the probate process much easier than when the law is not followed.

While I am always an advocate for consulting with an experienced estate planning attorney because “you don’t know what you don’t know”, there is still the temptation to print a form off the internet or just write one up yourself since it doesn’t cost anything.  That might be true if we only consider the upfront cost to prepare the document.  After the person dies, however, is when the real cost can be seen.

When it comes to the execution of a will, I have seen too many instances in which even the simplest elements of execution are not followed.  As I laid out last week, the will must be signed by the testator before two witnesses. A self proving affidavit  should also be signed.  

In our office we have had numerous cases in which these elements were not all present.  For example, one will had the testator’s signature in one place but in a second location it was blank.  In another instance, the self executing affidavit did not have the language that allows the Surrogate to accept the will.

In each case, we had to file an order to show cause to ask a judge to deem the will a validly executed one before the Surrogate would accept it as such.  Depending on the particular deficiency, we may need to track down and provide notice to possible heirs and witnesses.  This can be time consuming and expensive – often more expensive than the cost of consulting an estate planning attorney to prepare a validly executed will.