Recently, I have been getting a number of will documents from bereaved families where the deceased crossed out paragraphs or added names and crossed out others. This unnecessarily created problems for the families involved.
New Jersey Probate
New Jersey has one of the easiest probate procedures in the country. All an executor must do is present the original will and death certificate to the county surrogate, and after providing some information and paying a small filing fee, the will is probated. The county surrogate has been given the statutory authority to admit wills to probate, if they conform to the statutory requirements. NJSA 3B:3-19, et seq. The key point here, however, is that, in order to get the quick probate through the surrogate’s office, the will must meet the statutory requirements. If the document does not meet the statutes, then the surrogate cannot act, and the executor must bring the matter to a judge.
Revoking a Will
If you write on your will, it calls into question whether it has been revoked. Even marking up only part of your will may not limit the revocation to the one part; it could act to revoke the entire document. Drawing an “X” over the pages you deem to no longer apply because, the named beneficiary has predeceased you, may act to revoke the entire document. Crossing out the name of a beneficiary and writing another above it, does not help matters, even if you initial and date the change. Who is going to know whether you did that, or someone else? Regardless, because there is doubt, the surrogate cannot admit the will to probate.
Probate Court
If the surrogate cannot admit the will to probate, an attorney must be hired to bring the matter before a judge. Depending upon the circumstances, with adequate proofs, a judge may admit the marked-up document to probate. This, however, will cost the estate significant attorney fees and lost time in administration of the estate. If the family is contentious, it may even open the door to a will challenge and other strife.
Don’t Write on Your Will
Please. Don’t write on your original will. And for that matter, don’t write on your power of attorney or advance directive. Many times, the changes I have seen were we not even necessary. If you need to change your will, please see an attorney who can draft a codicil, an amendment. Because you will not be around to argue the point at time of probate, these documents must be correctly created and meet the standards required. If you do, it will be easier for those you leave behind.
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, Shanahan & Voigt, 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.
You may contact Bob at (908) 751-1551, or [email protected]. For more information, visit www.legalcounselnj.com
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