Some Frequently Asked Questions About Wills
During the course of drafting Wills for clients, there are common questions asked of me about various options and clauses which can be or are included, in the first draft. Here are a few:
I am often asked, “What happens if my entire family dies in a plane crash? Who gets my estate?” In the extremely unlikely event that you, your spouse, and your children die in a common disaster, and this event is not provided for in your last will, your estate will pass under the New Jersey Intestacy Statute-N.J.S.A. 3B:5-1 through 4. Assuming there are no grandchildren, generally, your estate will go to any parents surviving you. If none, to your brothers and sisters, then down to cousins by degree. Although not commonly done, you may include a clause in your will providing for this event, thus answering your question for all.
Many well-written will state something like, “No interest of any beneficiary shall be subject to anticipation or voluntary or involuntary alienation.” Huh? Yes, a “spendthrift” is a person who can’t control their spending. This clause states that a beneficiary may be called upon to agree to turn over their inheritance before they receive it, or be forced or voluntarily agree to give it to a creditor. Likewise, such a person cannot borrow against the anticipated amount to be received.
Contest of Will
Sometimes I am asked, “Can I put in a clause which says, ‘If anyone challenges my Will, they lose their inheritance’?” You can, but it is not enforceable in a New Jersey court. Some, though, want the clause in there to perhaps give someone pause before contesting.
My Funeral Wishes
You can put your funeral wishes in your last will. But you should make those wishes clear elsewhere as well. Sometimes your Will is not found in time. You also have the option of visiting your local funeral director and setting it all down with a pre-paid funeral plan. Regardless, you should name your executor or someone else as “Funeral Agent” in your will. The funeral director will take orders from this person in the event of a family disagreement over the disposition of your remains. Unfortunately, this does happen, and funeral directors always want to know the identity of the “Funeral Agent”.
These are only a few frequently asked questions. If you have questions, I’d like to answer them for you. Please call our office for an estate planning conference. We will go over everything with you thoroughly so that your wishes are known and followed.
Robert J. Shanahan, Jr. Esq. focuses his practice in estate planning, elder law, and probate matters. Mr. Shanahan additionally practices 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.
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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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