Understanding “I Love You Wills” in New Jersey

I-Love-You-Wills

If you are married and creating or updating your estate plan, you may be considering “I love you Wills.” Essentially, this type of Will leaves all your personal belongings to your spouse in the event of your death, and vice versa.

For many married couples, “I love you Wills” present a more straightforward approach to estate planning — you love your spouse, you leave everything you have to him or her and that’s that.

Yet clients considering “I love you Wills” often wonder, what happens to my Will if my spouse and I get divorced? First of all, you should update your Will during any major life event — births, deaths, new jobs and divorce just to name a few. However, what if you fail to update your Will after divorce? Does your ex still get everything? Fortunately, the State of New Jersey has laws in place to protect divorcees who previously had an “I love you Will” in place.

According to N.J.S.A. § 3B:3-14, there is a revocation of probate and non-probate transfers by divorce or annulment. So, let’s say you are happily married and have an “I love you Will” in place. Then, at some point down the road, you and your spouse get divorced but you forget to update your “I love you Will”. New Jersey law revokes any bequests made to your former spouse and they automatically pass on to your next beneficiaries.

In addition, if your ex-spouse was named the primary executor of your “I love you Will”, worry not — your Will would be probated by the next person you named as executor of your Will. There are only a few ways to “revive” the bequests to spouses in “I love you Wills” after divorce in New Jersey and they are as follows:

  1. Remarriage;
  2. Revocation or nullification of the divorce; or
  3. The execution of a Will or Codicil after divorce.

The statute also revokes any survivorship claims either spouse has in a joint asset. This means that if you and your ex-spouse owned a piece of real estate together, your stake in the property would pass to your other beneficiaries and not to your surviving spouse. N.J.S.A. § 3B:3-14 also revokes the beneficiary rights of your former spouse to your life insurance policy unless otherwise specified in your divorce agreement.

There is no perfect Will for married couples — every relationship is different and requires its own custom tailored estate plan. Whether you are considering an “I love you Will” or need help updating your current estate plan, it is in your best interest to contact an estate planning attorney.

To discuss your NJ estate planning matter today, contact Alec Borenstein, Esq., at alec@bmcestateplanning.com, or call 908-236-6457.

Five Reasons to Revisit Your Estate Plan

estate planning nj

Five Reasons to Revisit Your Estate Plan

If you have an estate plan in place, you’ve already taken an important and responsible step. Perhaps you are even one of the few people who sat down and carefully planned your estate in your early adulthood. But if that was at least a decade ago and you haven’t thought about your estate since signing your will, the likelihood is that your documents no longer reflect your current circumstances or wishes.

Unfortunately, too many people make this very mistake. Wills are created and left untouched for many years, until their writers pass away. And confusion over an outdated will often leads to disputes among family members and beneficiaries about the deceased’s intentions.

You may feel relief knowing that you have an estate plan in place. However, it is important that you routinely revisit your estate plan over the course of your life, and especially when any of the following occurs:

  • New family members and friends — Has your family grown? You may want to include grandchildren, nephews and nieces in your last will. Additionally, your friend circle may expand. Or, you may recently have discovered a new charity or organization that you feel is important and should benefit from your wealth after your pass away.
  • Former family members and friends — Unfortunately, as time passes friendships may break. Even familial relationships can become bitter. In the event that you wish to remove a beneficiary from your will, you’ll need to sign an addendum or redraft it completely.
  • Your executor or co-trustee ages or dies — If you named someone to be an executor or trustee decades ago, that person may now be elderly, incapacitated or possibly dead. You may want to name your children or younger family members or friends as executors or co-trustees. When making such a decision consider age, skills, trust, geographic location and profession.
  • Change of assets — If you signed your will many years ago, it may not effectively address your current assets. In the event that your assets have increased or become more complex, you may want to create a trust or use other financial tools as your attorney advises.
  • Change of values — Again, depending on when you signed your will, your values wishes regarding advanced healthcare and financial directives may have changed. You should maintain updated information on what should happen to you and who should care for you if you become incapacitated.

Every few years and after every major life event you should revisit your estate plan to ensure that it correctly reflects your last wishes. For assistance drafting or updating your will in Springfield (Union County) or Lebanon (Hunterdon County) or elsewhere in New Jersey, contact Alec Borenstein, Esq., a partner with the firm, at alec@bmcestateplanning.com or call 908­236­6457 today.

Death After Divorce — Who Inherits?

Death after Divorce - Who Inherits in NJ?

Death After Divorce — Who Inherits in New Jersey?

It is common for married couples to craft wills that leave the entirety of one spouse’s estate to the other. In fact, according to New Jersey law, if no will exists and the deceased was married, his or her spouse may automatically inherit the estate. When a couple divorces, ideally, they each obtain new wills to address their change in circumstances. Likewise, estate lawyers recommend that wills be updated or replaced with any major life change.

What happens, however, if a couple divorces and doesn’t update their wills? In New Jersey, the outcome is dictated by statute. Upon finalization of the divorce,N.J.S.A. 3B:3-14 automatically revokes any dispositions or appointments of property made between former spouses prior to the divorce.  Thus, the provisions of the will leaving property to the former spouse are given no effect and instead the property passes to the next beneficiary named in the will, or if none is named, then the estate passes according to state laws of intestacy.

The statute also revokes any powers granted to the former spouse as well as the right of the former spouse to claim joint assets. For example, after divorce, your interest in property owned jointly by you and your former spouse would pass through your estate instead of passing directly to your former spouse if you die.

Awareness of state law is important for the following two reasons:

  1. First, some spouses, despite a divorce, may still wish to bequeath their property to their former spouse. It is common for a divorcee to desire to leave some property to a former spouse or to empower a former spouse to make important medical and financial decisions on his or her behalf. In such an instance, the divorcee must make a new will or other new documents post divorce to effectuate those wishes.
  1. Second, a divorce may impact your chosen line of beneficiaries.  If you do not update the order in which you want your property distributed, it will automatically flow to the next beneficiary named after your former spouse.

Importantly, divorce does not affect all transfers and dispositions. Transfers made through irrevocable trusts and rights as a beneficiary in a qualified retirement plan remain intact despite the divorce. Accordingly, if you do not intend for your qualified retirement plan to continue to benefit your former spouse, you should update your beneficiary designation.

As the estate planning process can become complicated, especially in light of divorce, it is in your best interests to consult with an attorney for guidance throughout the process. Creating a thoughtful estate plan — one that may include a last will and testament, revocable and irrevocable trusts, advance healthcare directives and prenuptial agreements, to name a few — is no task to tackle on your own. For help in Union or Hunterdon County or elsewhere in NJ, email Alec Borenstein, Esq., a partner with the firm, at alec@bmcestateplanning.com or call 908-236-6457 today.

Updating an Estate Plan After a Divorce in New Jersey

Updating an Estate Plan After a Divorce: Making sure your estate plan is up to date is important—especially after a divorce. 

In New Jersey, if you know you are moving toward divorce, there is no better time than the present to look at your estate plan. After a divorce, state law revokes language in a Will executed prior to divorce that appoints property to a former spouse.   However, this important revocation occurs only after divorce. In the interim, before or during divorce, your Will remains enforceable as written unless amended or remade.

After divorce, if you pass away without having revised your Will, you may be considered to have died intestate, without a Will, if your document does not name beneficiaries other than your former spouse. With no Will to direct distribution of your estate, the intestacy laws of New Jersey apply.

An estate plan requires considered thought. Many individuals undergoing or exiting a divorce do not feel up to the sometimes difficult decisions required of an estate plan. Nonetheless, a good estate plan—and updated documents—are the best way to protect you and your family.

Important estate planning points to review in the event of a divorce in New Jersey include:

  • Beneficiaries: Update the beneficiaries of your life insurance, retirement funds, annuities and other policies or investments. Create and name a trust to receive proceeds for the benefit of your children or other persons.
  • Guardians: If you have minor children, your ex-spouse is the guardian of your children, unless the parent is declared unfit by a court. Name a secondary guardian to care for your children in the event the need arises.
  • Trust documents: Work with your estate planning attorney to update your living trust and other trust tools you may have after divorce.
  • Advanced medical directives: Update your health care proxy directive to ensure appropriate individuals are named to make medical decisions on your behalf should you become incapacitated.
  • Durable power of attorney: Like your health care proxy directive, be sure to create a new durable power of attorney to name an agent other than your former spouseto make financial decisions in your best interests if you are disabled.
  • Will: A new Will is essential for persons moving through divorce. Your estate planning attorney can help you address important points including the designation of a new executor.

Once prepared, revisit your estate plan every three to five years, or as needed by life events or changes in tax and estate planning laws in New Jersey.

Be sure your estate plan protects you and your loved ones both during and after your divorce. When you have questions about your Will or planning documents in Hunterdon County or Union County, talk to a skilled estate planning attorney.

Taking Care of Tomorrow: Five Important Reasons Why You Need an Estate Plan

It’s easy to put off preparing your estate plan until tomorrow. Let’s talk about five good reasons to speak with an attorney and prepare your estate plan today.

Estate plans do more than direct the distribution of assets after you pass away. In fact, basic estate plans are essential for all adults over 18. Consider these key goals if you do not already have an estate plan:

  1. Taking care of yourself: Estate planning enables you to direct your own healthcare should you become incapacitated or terminally ill. In New Jersey and throughout the United States, all adults need an advance medical directive. Advance directives allow you to name a healthcare representative or proxy to carry out your wishes at end-of life. You can also prepare a Living Will that provides direction to your healthcare proxy, family members and medical team about life-sustaining measures that you may—or may not—desire.
  2. Taking care of others: After your death, an estate plan helps your family to regain their personal and financial stability. Preparing careful answers to important questions reduces the tension and stress on family members—and helps them move forward.
  3. Protecting your wealth and privacy: Your estate holds all of your assets and property. A well-prepared estate plan enables you to transfer the ownership of property and wealth outside of the public probate process. Your privacy is protected, legal costs are lowered and, importantly, assets are protected for those you love.
  4. Designating a guardian for minor children: No one expects to leave their child in the care of others. Naming a guardian for minor children is an act of love and responsibility that protects children if both parents pass away before those children reach adulthood.
  5. Avoiding intestacy: Individuals who pass away without a Will are termed intestate. Without a Will, the assets of your estate pass to heirs according to the law of New Jersey—not according to your wishes. 

Your estate plan should be reviewed about every five years, or in the event of the following:

  • A change in marital status: A divorce, marriage or the death of a spouse should trigger  the review and revision of your estate plan. In the case of a later-life remarriage, an estate plan addresses the need to protect inheritance plans for adult children.
  • A windfall or significant loss: If you reap a financial windfall or suffer a business loss, a review of your estate plan can address the change.
  • Changes in law that apply to you: Changes to inheritance, trust and tax laws could affect distribution of your assets. Be sure your estate plan reflects current laws and limits. 

There is no time like the present for preparing an estate plan. Protect yourself, your wealth and your beneficiaries by speaking with an estate planning attorney in New Jersey today.

By at .