I’m sorry for your loss. I truly am. There are few things more terrible than losing a loved one. It creates a hole in our lives, and it confronts us with our own mortality and our wishes for the next generation. Few of us have not been stricken by this unhappy, but certain event. Many have seen how poor planning can make circumstances for the survivors unnecessarily difficult and traumatic.

What Attorneys See

Attorneys, and others such as funeral directors, see the difficult situations, sometimes tragic, that people find themselves in after the death of a loved one. The problems caused by poor planning usually need the attention of an attorney to unravel and repair. This process is often involved, emotional and expensive. As an attorney, I am sometimes surprised by how easily a problem could have been avoided, not to mention the time and expense if the deceased had only put the proper documents in place. Here is what I want you to know:

Prepare a Last Will and Testament

I often hear “I don’t need a will because I don’t own anything”. You do. That small bank account will have to be collected and closed. The car will have to be sold or disposed of. Bills will have to be paid (funeral, last medical, property taxes, insurance, etc.). A house will have to be sold, or an apartment cleaned out. Someone will have to have the legal authority to act once you are gone. If you don’t have a will, then one of your family members will have to apply to a court to become the administrator. This takes time and the administrator will have to post a bond. If you just had a simple will appointing an executor, the process in New Jersey would take a half-hour and cost about $150.00. No bond. Much quicker. Less drama for your family.

If you don’t have a will, then your administrator and your assets will be appointed/distributed according to a state statute called the “Intestacy Statute”. You can read the statute at NJSA 3B:5-3 and -4. See if you can honestly tell your family that it expresses how you want your estate to be settled. See if the person who will be appointed your administrator is the right one for the job (NJSA 3B:10-2). But, if you don’t want to take the time to write a will, then there are no other options, and your family may have to go through some trying times. They won’t remember you kindly.

If you don’t have a will, you probably did not appoint a funeral agent. This person, usually your executor, has the authority to authorize the funeral director to carry out your plan. For example, perhaps you would like to be cremated, but one of your children objects. The funeral director will need to know who has the authority to tell him or her how to proceed to avoid liability.

Other Documents

For similar reasons, while you are preparing a will, also prepare a durable power of attorney and an advance directive for healthcare. Your power of attorney appoints someone to handle your financial affairs if you cannot. Absent this document, your family will be forced to hire an attorney and file court proceedings for guardianship. A simple document will avoid all of that. An advance directive can express your care wishes in the event you cannot make your own healthcare decisions. You can appoint someone to carry out your wishes. Put it in writing so that medical institutions know who has the legal authority to act.

It’s time. Don’t do this to your family. I promise to make things easy. Call my office and we will begin the process. We can talk over the phone or speak to each other over Zoom. It’s your move.
Robert J. Shanahan, Jr. Esq. focuses his practice on estate planning, elder law, and probate matters. Mr. Shanahan additionally practices in business law and non-profit matters. He is a trained, experienced mediator and offers dispute resolution services, particularly for those arising from probate and elder law matters. Additionally, Mr. Shanahan’s firm, Law Offices of Robert J. Shanahan, Jr., LLC, offers a breadth of additional services to families and businesses throughout central New Jersey.
Mr. Shanahan received his Juris Doctor from the Temple University School of Law in 1985 and obtained licensure in New Jersey in the same year. He received a Bachelor of Arts degree in History in 1981 from William Paterson University, with honors. Robert is a member and Past President of the Hunterdon County Bar Association and is a member of its Elder Law Committee. He is also active in the National Academy of Elder Law Attorneys and its New Jersey Chapter. He is pro bono counsel for Volunteer Guardianship One on One, in Flemington, New Jersey. Bob was named as a Super Lawyer in 2020 and in 2021.
You may contact Bob at (908) 751-1551, or [email protected]. For more information, visit www.legalcounselnj.com