By Robert J. Shanahan, Jr., Esq.
Avoid probate! There are many books, and much advice, about how to avoid probate by creating a living
revocable trust, instead of a last will and testament. This trust is created during your lifetime. A trust document is prepared, appointing the drafter as the trustee, and naming a successor trustee upon death or disability. Everything you own is then placed into the trust. Your house, your bank accounts, everything, is retitled into the trust. In this way, when you die, nothing is in your estate, and there is no need to probate a will. Your assets are distributed by your trustee, as stated in the trust document. The average cost for this document is about $2,500.00, plus a new deed and other documents necessary to transfer title to the trust.
Revocable Living Trusts Are Not Needed in New Jersey
In some states, in order to probate a last will, an executor must file a complaint in probate court. This is costly and time consuming. In those states, people are advised to prepare living trusts. It saves time and money. But, to probate a last will in New Jersey, an executor need only bring the original will and death certificate to the county surrogate’s office. In about twenty minutes, and for much less than two hundred dollars, the will can be probated. The average cost of a last will is much less than $2,500.00, and the retitling of assets is not necessary.
Privacy by Creating a Living Trust
In some states, an executor is required to file an accounting with the probate court, listing all of the assets of the estate and the identity of the beneficiaries. If one has a living trust, instead of a will, there is no need to file an accounting, and this information will not be made public. But, in New Jersey, even if you probate a last will, the filing of an accounting is not necessary. It remains between the beneficiaries. Nothing is made public in either case, here.
Avoiding Death Taxes by Creating A Living Trust
This is a misnomer. Regardless of whether you have a living trust or a traditional last will, if death taxes are due, they will have to be paid. The tax authorities do not make it that easy.
In New Jersey, Practicality Is Best Served By Preparing A Traditional Last Will and Testament
Unless you own real estate in another state, there is no need to prepare a living trust for those domiciled in New Jersey. Creating the trust costs far more than a last will, and living as a trustee can be complicated. In fact, when an attorney prepares a living trust, he or she will always prepare a last will anyway. We know that our clients are going to continue living their lives after they sign the trust document. They will buy and sell houses, open and close accounts, and start new investments. We know that you are going to forget to title these things in the name of the trust. So, we will prepare a last will, called a “Pour Over Will” which says that if you forgot to put something in the trust, and it is in your name when you die, the executor is to put it into the trust. Now you will have a trust and a probate estate! Why do this to yourself and your loved ones?
As an attorney, I will be happy to prepare a living trust document for you, if you insist. But, I believe you should know that the probate issues you are hearing about, are not issues of concern for residents of New Jersey.
Robert J. Shanahan, Jr. Esq focuses his practice in 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 the New Jersey State Bar Association, and its Elder Law and Disability Section. He is also active in the National Academy of Elder Law Attorneys, serving as a Trustee to NJ NAELA. Robert is a member of the Hunterdon Medical Center’s Bio Ethics Committee, and he was awarded a Five Star Financial Services Professional Award for 2016 and 2017.
You may contact Bob at (908)751-1551, or firstname.lastname@example.org. For more information, visit www.legalcounselnj.com
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