Understanding Living Wills: Why They Matter and How to Create One

Understanding Living Wills: Why They Matter and How to Create One

by | Jan 10, 2025 | Estate Planning, Living Will

Estate planning is not just planning for death – it’s also planning for incapacity. A Living Will is an essential planning tool everyone needs to ensure that their medical wishes are honored if they ever become unable to communicate them. Here is a short summary of Living Wills, their importance, and how to create one in the New Jersey.

What Is a Living Will?

A Living Will, also known as an Advance Directive, is a legal document that outlines your wishes regarding medical care and end-of-life treatment. It comes into effect if you become incapacitated and unable to express your preferences. A Living Will can specify decisions about life-sustaining treatments, resuscitation efforts, artificial nutrition, and other critical interventions.

Why Is a Living Will Important?

  1. Ensures Your Wishes Are Honored: A Living Will gives you control over your medical care, even when you cannot speak for yourself.
  2. Avoid Conflict and Reduce Stress on Loved Ones: Without a Living Will, family members may face difficult decisions about your care. A clear document can ease their emotional burden and prevent potential conflicts.
  3. Provides Guidance to Healthcare Providers: Medical professionals are bound to follow your instructions as stated in a legally valid Living Will.

How to Create a Living Will in New Jersey

Creating a living will in New Jersey is straightforward but requires careful consideration. Follow these steps to ensure your living will is valid and reflects your intentions:

  1. Understand State Requirements: In New Jersey, a living will must comply with the New Jersey Advance Directives for Health Care Act, N.J.S.A. 26:2H-53. The document must be in writing, signed by you, and either notarized or witnessed by two adults.
  2. Reflect on Your Preferences: Think about your values, beliefs, and medical treatment preferences. Consider consulting with your doctor to understand the implications of different medical interventions.
  3. Appoint a Healthcare Proxy: You can designate a Healthcare Proxy (also called a Durable Power of Attorney for Healthcare) to make decisions on your behalf if you’re unable to do so. This person should be someone you trust to respect your wishes.
  4. Draft the Document: Be clear and specific about your wishes to avoid ambiguity. In most instances an attorney will draft your Living Will along with a Durable Power of Attorney, and Last Will and Testament as part of a typical Estate Planning package. However, if you just want a Living Will and are looking for a free or low cost option, use a template specific to your state. The New Jersey Commission on Legal and Ethical Problems in the Delivery of Health Care, has developed free forms that are available here. The website Five Wishes also provides very lost cost options for individuals throughout the country here.
  5. Sign and Formalize the Document: Sign the document in the presence of a notary public or two witnesses. Witnesses cannot be your healthcare proxy or anyone directly involved in your care such as your doctor.
  6. Distribute Copies: Share copies of your living will with your Healthcare Proxy, family members, and primary care physician. Keep the original in a safe but accessible location.
  7. Review and Update Regularly: Life circumstances and medical advancements may change your preferences. Review your living will periodically and make updates as needed.

Frequently Asked Questions

1. Can I change my Living Will? Yes, you can update or revoke your living will at any time, as long as you are mentally competent. Be sure to inform everyone who has a copy of the document about the changes.

2. What happens if I don’t have a Living Will? Without a Living Will, medical decisions may be made by your family members or healthcare providers based on what they believe is in your best interest. This can lead to stress and potential disagreements.

3. Is a Living Will the same as a Last Will and Testament? No, a Living Will addresses healthcare decisions during your lifetime, while a Last Will and Testament outlines the distribution of your assets after death.

Final Thoughts

A Living Will is a powerful tool to ensure your medical wishes are respected and to provide peace of mind for you and your loved ones. In New Jersey, the process of creating a Living Will is straightforward and accessible. It is also one of the few legal documents you can obtain for free and complete on your own. By taking the time to prepare this document, you can take control of your future care and alleviate potential challenges for your family.

Start planning today by consulting with a legal professional or using reliable resources to draft your Living Will. It’s a small step that can make a big difference during a difficult time.

Understanding the Probate Process in New Jersey

Understanding the Probate Process in New Jersey

by | Jan 8, 2025 | Estate Administration, Estate Planning

Probate can be a confusing and emotional process, especially if you are dealing with the loss of a loved one. If you live in New Jersey or are handling the estate of someone who resided there, it’s important to understand how probate works in the state. Here’s a quick guide to help you navigate the probate process in New Jersey.

What Is Probate?

Probate is the legal process through which a deceased person’s estate is settled and distributed to beneficiaries. During probate, the court validates the deceased’s will (if one exists), appoints an executor or administrator to oversee the estate, and ensures that debts, taxes, and other obligations are paid before assets are distributed.

Is Probate Necessary in New Jersey?

In New Jersey, whether probate is necessary depends on the type and value of the assets left behind. Some assets, such as jointly owned property, life insurance proceeds with named beneficiaries, or accounts with payable-on-death (POD) designations, bypass probate. However, assets solely in the deceased’s name typically require probate to transfer ownership.

Types of Probate in New Jersey

New Jersey has two primary probate processes:

  1. Formal Probate:
    • Required when there is a dispute about the will or the estate’s administration.
    • Overseen closely by the Surrogate’s Court.
  2. Informal Probate:
    • The most common process when there is no dispute.
    • Streamlined and less costly, as it requires minimal court involvement.

Steps in the Probate Process

  1. File the Will with the Surrogate’s Court:
    • The executor named in the Will must file the original will and a certified copy of the death certificate with the Surrogate’s Court in the county where the deceased resided.
    • If there is no Will, the court will appoint an administrator, usually a close family member, to handle the estate.
  2. Appoint an Executor or Administrator:
    • The court officially appoints the executor or administrator to act on behalf of the estate.
    • This individual receives “Letters Testamentary” (if there’s a will) or “Letters of Administration” (if there isn’t a will), granting them legal authority to manage the estate.
  3. Notify Creditors and Beneficiaries:
    • The executor must notify all beneficiaries named in the Will and publish a notice to creditors, allowing them to make claims against the estate within a specified timeframe.
  4. Inventory the Estate’s Assets:
    • The executor compiles a list of the deceased’s assets, including bank accounts, real estate, personal property, and investments.
  5. Pay Debts and Taxes:
    • The executor ensures all outstanding debts, including medical bills, funeral expenses, and taxes, are paid before distributing the remaining assets.
  6. Distribute Assets to Beneficiaries:
    • Once all obligations are met, the executor distributes the remaining assets according to the will or, if there’s no will, New Jersey’s intestacy laws.

How Long Does Probate Take in New Jersey?

The timeline for probate varies depending on the complexity of the estate. Informal probate can take as little as a few months for simple estates, while complex or contested cases may take a year or more to resolve.

Avoiding Probate in New Jersey

There are ways to minimize or avoid probate in New Jersey:

  • Create a living trust and transfer assets into it.
  • Designate beneficiaries for accounts and insurance policies.
  • Hold property jointly with rights of survivorship.

Do You Need an Attorney?

While New Jersey’s probate process is relatively straightforward, hiring an attorney can be beneficial, especially for larger or more complicated estates. An attorney can help navigate legal requirements, resolve disputes, and ensure the executor fulfills their duties properly.

Conclusion

Probate in New Jersey is a manageable process, but understanding the steps and requirements can help reduce stress and ensure the estate is handled efficiently. If you’re dealing with probate, consider consulting a qualified attorney to guide you through the process and provide peace of mind.