New Jersey State Specific Information

Will, Trust, Power of Attorney, and Estate Planning

Official state laws:

New Jersey Revised Statutes
Probate jurisdiction rests with the Surrogate’s Court
Probate laws are primarily under Title 3B

Minimum age requirement to:

Distribute property by will: 18 (Section 3B:3-1)
Which minor gets property: 18 to 21

Holographic will is recognized (Section 3B:3-3)

State taxes:

Estate tax: Equal to federal credit for state death taxes minus amount paid to inheritance tax (Section 54:34-2 and 54:38-1)
State gift tax:Inheritance tax: Up to 16% (Section 40-15-1 to 40-15-19)
- No state gift tax (Section 40-15-1 to 40-15-19)
- Anatomical Gift Act (Section 26:6-65)
Inheritance tax: Up to 16% (Section 40-15-1 to 40-15-19)

Default rules: How property is distributed if there is no will, i.e. laws of intestate succession: (Section 3B:5-3 to 3B:5-4)

No surviving spouse, but there are surviving children:
- All of the estate goes to the surviving children split equally among them or to their children in accordance to their per stirpes share
Surviving spouse and
- Children of surviving spouse:
  - One-fourth (1/4) of your estate (at least $50,000, but not more than $200,000), and one-half (1/2) to surviving spouse, and
  - The other one-half (1/2), split equally among the surviving children or to their children according to their per stirpes share
  - Children not of the surviving spouse (for example your children from a previous marriage):
    - One-half (1/2) to surviving spouse, and
    - The other one-half (1/2), split equally among the surviving children or to their children according to their per stirpes share
    - No children and both of your parents of deceased:
      - All of your estate will pass to your spouse
    - No children, but at least one of your parents survives you:
      - One-fourth (1/4) of your estate (at least $50,000, but not more than $200,000), and one-half (1/2) to surviving spouse, and
      - The other one-half (1/2), split equally among the surviving parents
At least one parent survives you, but no surviving spouse or children:
- All of your estate will pass to your surviving parents equally
No spouse, children, or parents:
- Siblings (brothers and sisters) equally or to their children in according to their per stirpes share. If none, then one-half (1/2) to maternal grandparents and the other one-half (1/2) to paternal grandparents

Who must be named as a beneficiary in your will:

Surviving spouse (Section 3B:5-16), andChildren, born or adopted, and grandchildren (Section 3B:5-15)
- Surviving spouse must be given:
  - One-third (1/3) of the “augmented” shares; “augmented” usually includes both the property that passes under the will and any other property that passes by other “non-will” transfers, e.g. under a living trust or joint tenancy arrangement; see statute for more details on “augmented” (Section
Children, born or adopted, and grandchildren (Section 3B:5-15)

Effects of changes in your marital status on your will:

You are divorced from the surviving spouse:
- Revokes will as to divorced spouse, (Section 3B:3-14)
You get married without changing your will that does not provide for your new spouse:
- Spouse is still entitled to their statutory share under state intestate law (Section 3B:5-15)

Out of state executors: Must post bond unless will expressly waives (Section 3B:15-1)

Witnesses:

Minimum number of witnesses required: Two (Section 3B:3-2)
Are witnesses allowed to be beneficiaries?: Yes (Section 3B:3-8)
Requirements to be a witness, witnesses must:
- be at least 18 years of age or a notary public, and
- not be the person you appointed as your agent

Property ownership (Sections 46:3-17, 46:3-17.1, and 46:3-17.2)

Common law state
Property owned jointly is presumed to be held as a tenancy in common, unless clearly stated that a joint tenancy has been created
Property owned between spouses is presumed to be held as a tenancy by the entirety, unless there is clear language otherwise
Bank account deposits held jointly are payable to any survivor named in the bank account
Tenancy by the entirety is recognized in this state

Other types of wills:

Self-proving wills recognized: Yes, recognized (Section 3B:3-4)
Living will: New Jersey Instruction Directive (Section 26-2H-55) requires your doctor or treating health care institution to receive the New Jersey Instruction Directive and in addition to your attending physician, one other physician must confirm that you are unable to make health care decisions
Appointment of a Health Care Representative (Section 26-2H-58)
Durable Power of Attorney (Section 3B:13a-10)