Can a testator include an arbitration clause in their Will that forces beneficiaries to resolve disputes in a private arbitration forum rather than a New Jersey court? For the first time, the New Jersey Appellate Division has answered that question directly — and the answer is no.
In a case published on April 21, 2026, In re Estate of Samuel P. Hekemian, the Appellate Division held that an arbitration provision contained in a Last Will and Testament is unenforceable under New Jersey law.
Background: The Hekemian Family Estate
Samuel P. Hekemian died testate in August 2018, survived by his wife Sandra and their four adult sons: Peter, Jeffrey, Mark, and Richard. His 2002 Last Will and Testament (2002 LWT) appointed his son Peter and longtime advisor Edward G. Imperatore, Esq. as co-executors and co-trustees of three testamentary trusts established under the Will.
The 2002 LWT contained an arbitration clause providing that any dispute regarding the interpretation of the Will or its administration “shall be submitted for settlement by arbitration.” The clause declared arbitration to be “the exclusive remedy” for resolving such disputes and stated that the arbitrator’s decision “shall be final and binding upon all interested parties and shall not be appealable to any court of law.”
The same arbitration provision appeared in reciprocal Wills executed simultaneously in 2001 by Samuel and Sandra that were prepared by the same New York attorney. When Sandra and Richard later filed exceptions to the co-executors’ first intermediate accounting of the estate, the co-executors moved to compel arbitration.
A Second Look at the Same Arbitration Clause
This was not the first time the arbitration provision had been challenged. In an earlier unpublished opinion, the Appellate Division had affirmed the denial of a motion to compel arbitration of Richard’s request for an accounting, finding that the clause was not the product of mutual assent under traditional contract principles and that it failed to explain that Richard was relinquishing his right to bring a claim in court. At that time, however, the court stopped short of declaring the arbitration provision categorically unenforceable.
In the intervening period, Sandra joined the litigation and filed her own exceptions to the co-executors’ accounting. Unlike Richard, Sandra had received distributions under the 2002 LWT. The co-executors argued this distinguished her situation and that her participation in the Will’s benefits, combined with the execution of the reciprocal 2001 Wills, established the mutual assent necessary to compel her to arbitrate. The trial court rejected that argument and denied the motion. The co-executors appealed.
The Court’s Holding: Two Independent Grounds
The Appellate Division affirmed the trial court’s denial, but went further than the lower court by issuing a definitive ruling on a question of first impression: arbitration clauses in testamentary instruments are unenforceable under New Jersey law. The court rested its holding on two independent and mutually reinforcing grounds.
1. Lack of Mutual Assent
An agreement to arbitrate, like any contract, requires mutual assent — a knowing and voluntary waiver of the right to pursue claims in court. The court reaffirmed its earlier conclusion that the arbitration clause failed to explain, in clear and unambiguous terms, that interested parties were relinquishing their right to sue. Citing Atalese v. U.S. Legal Servs. Grp., L.P., 219 N.J. 430 (2014), the court emphasized that “the point is to assure that the parties know that in electing arbitration as the exclusive remedy, they are waiving their time-honored right to sue.”
The co-executors argued that Sandra’s simultaneous execution of a reciprocal Will containing the same arbitration clause demonstrated her assent. The court rejected this. While a meeting of the minds is not required for a Will to be effective — because a Will is a unilateral disposition of property, not a contract — that principle cuts in the opposite direction for arbitration purposes. Precisely because a Will is unilateral, neither Sandra nor any other interested party was afforded the opportunity to consider or elect to waive their right to proceed in court. The court was not satisfied that the simultaneous execution of reciprocal Wills, without more, established the kind of informed, knowing assent required for a valid arbitration agreement.
2. Inconsistency with the Probate Code
Even if the assent problem could be overcome, the court held that arbitration clauses in Wills are incompatible with New Jersey’s statutory framework for estate administration. The Probate Code, N.J.S.A. 3B:1-1 et seq., vests the Superior Court with comprehensive authority over Will disputes, trust administration, and fiduciary accountings. The court catalogued the relevant provisions, including but not limited to:
N.J.S.A. 3B:2-2 grants the Superior Court "full authority to hear and determine all controversies respecting wills, trusts[,] and estates, and full authority over the accounts of fiduciaries, and also authority over all other matters and things as are submitted to its determination under this title."
N.J.S.A. 3B:3-17 during probate, the Superior Court "may take depositions to wills[,] admit the same to probate, and grant . . . letters testamentary or letters of administration with the will annexed."
N.J.S.A. 3B:3-18 requiring that to "prove the transfer of any property or to nominate an executor, a will must be admitted to probate."
Against this backdrop, the court reaffirmed and expressly adopted what had been an observation in its prior unpublished opinion: “arbitration clauses that eliminate the courts’ expected role in resolving Will disputes are inconsistent with the detailed statutory scheme vesting the superior courts with the authority to adjudicate such issues.” Accordingly, enforcement of an arbitration clause in a testamentary instrument is contrary to both the Probate Code and New Jersey’s contract principles. The court held:
We conclude enforcement of an arbitration clause in a testamentary instrument is contrary to the court’s role underlying the Probate Code and inconsistent with our State’s contract principles.
What This Means for Estate Planning in New Jersey
The Hekemian decision settles a question that had been lingering in New Jersey estate practice for years. Estate planners and their clients should take note of several practical implications.
Arbitration clauses in Wills are unenforceable in New Jersey. Regardless of a testator’s intent, an arbitration provision in a Last Will and Testament cannot compel beneficiaries, heirs, or other interested parties to resolve their disputes outside of court. Any such provision should be considered a nullity.
Testamentary trusts are also covered. The court’s holding extends to disputes concerning trusts created under a Will, not merely the Will itself. The arbitration clause in the Will purported to cover disputes “regarding the interpretation of this Will and the trusts created hereunder” — both were held unenforceable.
The result is the same regardless of mutual assent. Even if a testator and their spouse executed reciprocal Wills containing identical arbitration clauses, and even if the surviving spouse received benefits under the Will, that is insufficient to establish the knowing, voluntary waiver of court rights required under Atalese.
Inter vivos trusts are a different question. The Hekemian decision addresses testamentary instruments — Wills and trusts created by Wills. Arbitration clauses in standalone inter vivos trusts, which are contractual instruments, may be treated differently.
Will disputes belong in court. Beneficiaries and interested parties who find themselves in estate disputes in New Jersey have a right to litigate those disputes in the Superior Court, Chancery Division, Probate Part — and a testator cannot take that right away through a provision buried in their Will.
A Practical Note for Families
For families navigating an estate dispute in New Jersey, the Hekemian decision is significant. If a co-executor or trustee attempts to invoke an arbitration clause in a Will to divert your dispute out of court, that clause is unenforceable. You are entitled to pursue your claims — whether exceptions to an accounting, removal of a fiduciary, or other relief — in the Superior Court under the full protections of New Jersey law.
For those in the estate planning process, this decision underscores the importance of working with an experienced New Jersey estate planning attorney who stays current with developments in the law. Estate planning documents should reflect the current legal landscape, not aspirational provisions that courts will not enforce.
It is one of the most common questions elder law attorneys hear: “If my parent goes on Medicaid, does the state get the house when they die?” The short answer is: it depends — and the details matter enormously.
New Jersey, like every other state, operates a Medicaid Estate Recovery Program (MERP). Under federal law, states are required to seek reimbursement from the estates of Medicaid recipients for long-term care costs paid on their behalf. The home — often the only significant asset remaining at death — is frequently the target. But the rules governing when and how New Jersey can pursue recovery are specific, and with proper planning, recovery can often be minimized or avoided entirely.
This post explains how New Jersey’s Medicaid estate recovery program works, what protections exist, and what families can do to protect a home and other assets.
What Is the Medicaid Estate Recovery Program?
The Medicaid Estate Recovery Program is administered in New Jersey by the Division of Medical Assistance and Health Services (DMAHS). Under both federal law and New Jersey law, DMAHS is required to seek reimbursement from the estates of deceased Medicaid beneficiaries for all Medicaid payments made on their behalf for services received at age 55 or older.
This is a point that catches families off guard. Medicaid’s eligibility asset rules during the recipient’s lifetime exempt the home from the $2,000 asset limit, provided the recipient intends to return home or a spouse or dependent relative lives there. But that exemption during life does not protect the home from recovery after death. The state is effectively deferring its claim until the recipient passes.
Recovery is not limited to nursing home care. Under New Jersey’s rules, DMAHS recovers for all Medicaid payments made on behalf of a recipient age 55 or older, including:
Nursing facility care
Home and community-based services, including MLTSS
Capitation payments (the cost of the Medicaid plan) made to managed care organizations on the recipient’s behalf — even if no specific services were rendered
Hospital and prescription drug costs related to long-term care
This broad scope means that recipients of home-based care programs are equally subject to estate recovery as nursing home residents. Families who chose home-based care assuming it carried no recovery risk should be aware of this.
What Does New Jersey Count as Part of the Estate?
New Jersey’s definition of “estate” for recovery purposes is broad — and broader than the probate estate in important ways. Under NJ DMAHS rules, an estate includes any property that belonged to the deceased at the time of death or at the moment prior to death, including:
The decedent’s home or share of a home
Bank accounts — whether solely or jointly held
Trusts and annuities
Stocks and bonds
Any other real or personal property
Critically, New Jersey’s rule extends to jointly held property. Even though a jointly held bank account or home typically passes to the surviving joint owner outside of probate — by operation of law — New Jersey treats the deceased recipient’s share as part of the recoverable estate. This is an area where New Jersey’s rules are particularly aggressive compared to some other states, which limit recovery to the probate estate only.
Families who added an adult child to a parent’s bank account or deed as a matter of convenience should understand that this titling arrangement may not protect those assets from MERP. See my earlier post on joint bank accounts and Medicaid eligibility for how account titling creates problems both during the Medicaid application process and after death.
When Will New Jersey Not Pursue Recovery?
Recovery is not automatic upon death. New Jersey is prohibited from pursuing estate recovery — or must defer its claim — under the following circumstances:
Surviving Spouse
DMAHS will not pursue recovery while a surviving spouse is alive. Recovery is deferred until after the spouse’s death. At that point, New Jersey may seek recovery from whatever remains in the estate — including assets that passed from the Medicaid recipient to the surviving spouse. This is an important planning consideration, particularly for couples who did not pursue Medicaid planning before the first spouse’s death.
Surviving Child Under 21
Recovery is deferred while the recipient has a surviving child under the age of 21. Once the child reaches 21, or upon the child’s earlier death, DMAHS may pursue recovery from remaining estate assets.
Blind or Permanently Disabled Child
Recovery is deferred while the recipient has a surviving child who is blind or permanently and totally disabled under Social Security standards. Recovery may be pursued after that child’s death or if the disability no longer applies.
Cost-Effectiveness
DMAHS has discretion not to pursue recovery if it determines that doing so would not be cost-effective. In practice, this exception applies to very small estates where the administrative cost of collection would outweigh the recovery amount.
The Hardship Waiver: Narrow in New Jersey
Federal law requires all states to offer a hardship waiver — a mechanism by which the estate representative can seek to have DMAHS waive or reduce its recovery claim based on undue hardship to the beneficiaries. Some states have adopted generous hardship waiver standards. New Jersey has not.
⚠️ Important: New Jersey’s hardship waiver rules are among the strictest in the country. Under N.J.A.C. 10:49-14.1(h), New Jersey recognizes hardship only in very limited circumstances: when the deceased’s property is the sole source of income for one or more surviving family members, and pursuing recovery would likely cause those survivors to become eligible for public assistance or Medicaid. A waiver may also be considered if it would not be cost-effective to pursue recovery.
This standard is significantly narrower than the federal guidance, which suggests states also waive recovery against homes of modest value, income-producing family farms or businesses, and other compelling circumstances. New Jersey has not adopted those broader protections.
The practical consequence is that most NJ families who would otherwise qualify for a hardship waiver in other states will not qualify in New Jersey. An adult child who lived in and cared for a parent’s home, for example, would not qualify for a waiver simply because they stand to lose their residence — unless they can demonstrate they have no other source of income and would be driven to public assistance.
How New Jersey Places and Enforces Liens
When a Medicaid recipient dies and the conditions for recovery are met — no surviving spouse, no qualifying child — DMAHS will seek to be repaid up to the amount of all Medicaid assistance provided for services received at age 55 or older, including all capitation payments.
New Jersey does not typically force the immediate sale of a home to satisfy a MERP claim. However, there is an important exception to the deferral rule for family members residing in the home. Under New Jersey’s rules, if a family member of the deceased Medicaid beneficiary had continuously resided in the home prior to the beneficiary’s death, and the home was the beneficiary’s primary residence and remains the family member’s primary residence, DMAHS may record a lien against the property but will not enforce it until:
The property is voluntarily sold
The resident family member dies
The resident family member vacates the property
This deferral can provide meaningful relief for a family member — often an adult child caregiver — who has been living in the home. But it is a deferral, not a waiver. The lien remains. When any of the triggering conditions occur, DMAHS will pursue its claim from whatever value remains in the property.
Life Insurance, Annuities, and Burial Trusts
Life Insurance
Proceeds from life insurance policies are generally considered assets of the named beneficiaries — not the estate — and are therefore not subject to recovery, provided a beneficiary other than the estate is named. However, if a named beneficiary predeceases the Medicaid recipient and the estate becomes the default beneficiary, those proceeds become recoverable.
Annuities
Annuities that were not liquidated prior to Medicaid eligibility must name the State of New Jersey as the remainder beneficiary in the primary position — or secondary position if there is a community spouse or qualifying child. Upon the recipient’s death, the state collects any remaining principal or income from the annuity before any other beneficiary receives a distribution.
Irrevocable Funeral Trusts
Under New Jersey law, any funds remaining in an irrevocable funeral trust after reasonable funeral expenses have been paid must be forwarded to DMAHS if the deceased received Medicaid or public assistance benefits. This applies equally to burial insurance policies.
What the Estate Is Required to Do
The obligation to notify DMAHS falls on whoever is handling the estate — whether an executor, administrator, or family member. Under New Jersey’s rules, the estate representative must contact DMAHS in writing as soon as possible after the Medicaid recipient’s death to determine whether a claim exists. This notice must be sent before any assets are distributed to creditors or heirs (with the exception of reasonable funeral expenses).
Distributing estate assets to heirs before satisfying a DMAHS claim can expose the executor or administrator to personal liability. Written notice should be sent to:
DMAHS Office of Legal and Regulatory Affairs Attn: Estates PO Box 712 — Mail Code #6 Trenton, NJ 08625 Phone: 609-588-3016
How to Protect Your Home and Assets From Estate Recovery
The most important thing to understand about Medicaid estate recovery is that it is largely avoidable with proper advance planning. The strategies that work best require time — ideally years — before a Medicaid application is filed.
Medicaid Asset Protection Trust (MAPT): Transferring a home or other assets into an irrevocable Medicaid Asset Protection Trust removes those assets from the recoverable estate, provided the transfer occurs more than five years before a Medicaid application. Assets held in a properly structured MAPT are not subject to MERP because they are no longer owned by the Medicaid recipient at death. This is the single most effective tool for protecting a home from estate recovery.
Life Estate Deed: A life estate deed transfers remainder interest in the home to children or other heirs while the owner retains the right to live there for life. However, this type of transfer must be made more than 5 years before the first Medicaid application. This strategy should only be used if the plan is to stay in the home permanently. If the Medicaid recipient vacates the home or if it is sold, it may affect the home's exempt status under Medicaid rules or be considered a receipt of assets. There are nuances to this approach and it is not appropriate in all situations.
Spousal planning: A home transferred to a community spouse during the Medicaid recipient’s lifetime can be considered an exempt asset. Proper titling and estate planning for the community spouse can limit what remains in a recoverable estate at the survivor’s death. There are also potential pitfalls to be aware of such as the unexpected death of the community spouse before the Medicaid recipient.
Beneficiary designations and joint ownership: Unlike some states, New Jersey reaches jointly held property and certain non-probate assets for recovery purposes. Families should not assume that a joint account or payable-on-death designation will shield assets from MERP in New Jersey.
For a broader discussion of Medicaid planning strategies available to married couples, including some that require a more difficult conversation, see my post on Divorce as a Medicaid Planning Strategy in New Jersey.
Final Thoughts
New Jersey’s Medicaid Estate Recovery Program is real, it is active, and it reaches further than most families expect — including jointly held property, home-based care recipients, and assets that pass outside of probate. The hardship waiver is available in theory but rarely granted in practice under New Jersey’s narrow standards. The families who successfully protect their homes and assets are almost always the ones who planned ahead. If you or a loved one is aging or dealing with health concerns, the question of Medicaid estate recovery is worth discussing with an elder law attorney now — before a nursing home admission, before a Medicaid application, and before it is too late to take meaningful action.
A decision from the New Jersey Appellate Division published June 17, 2025 (In the Matter of G.W.) has clarified a critical and previously unsettled area of law concerning public benefit liens. The court held that a lien issued by the Division of Developmental Disabilities (DDD) is immediately enforceable, while a Medicaid lien cannot be collected until the beneficiary’s death — a distinction with significant consequences for estate planning.
The Background
Gabrielle W., an adjudicated incapacitated adult, received residential services funded by both DDD and Medicaid. When she inherited $600,000 from her sister’s estate, Arc of Bergen and Passaic Counties, her court-appointed property guardian, sought to protect her Medicaid eligibility by transferring those funds to a special needs trust. But standing in the way was a $1,052,304 lien from DDD for the cost of her care — a lien DDD sought to enforce immediately.
The trial court declined to enforce the DDD lien, ruling instead that Medicaid’s future estate recovery rights had priority. The court reasoned it was in Gabrielle’s best interest to preserve her Medicaid eligibility and protect the trust. But on appeal, the Appellate Division disagreed.
The Court's Holding
The Appellate Division reversed the lower court’s order, emphasizing that DDD liens are enforceable immediately under N.J.S.A. 30:4-80.1. These liens attach to the property of a living person who receives services from DDD. On the other hand, Medicaid liens can only be asserted posthumously, pursuant to N.J.S.A. 30:4D-7.2, and only against the estate of the deceased Medicaid recipient.
The court concluded there is no statutory conflict: both liens can coexist, but they operate on distinct timelines. In the case of a living person like Gabrielle, DDD had the only legally viable lien. Medicaid’s recovery rights would not ripen until Gabrielle’s death.
Why This Matters
This case is a clear warning to guardians, trustees, and estate planners: Inherited assets cannot be shielded from DDD repayment obligations simply by invoking Medicaid's future claim rights. If a client receives services from DDD and comes into money, the DDD lien must be addressed promptly — either by repayment or through the statutory compromise process. The court also made clear that a “best interests” argument cannot override a legislatively mandated lien. Courts must enforce the statutes as written.
Planning Tip
If you have a loved one who receives public benefits like Medicaid or services from DDD, careful estate planning is essential. Leaving them an inheritance outright — even with good intentions — can jeopardize their benefits and trigger immediate repayment obligations. Instead, consider using special needs trusts or other protective planning tools to ensure their continued eligibility and long-term care without exposing them to liens or disruptions in services.
The G.W. case illustrates precisely what happens when protective planning is absent. Gabrielle's sister died intestate — without a will — which meant the $600,000 passed to Gabrielle outright under New Jersey's laws of intestate succession. There was no will directing those funds into a Special Needs Trust, no advance coordination with an elder law attorney, and no mechanism to receive the inheritance in a protected form. The result was an immediate lien enforcement proceeding that consumed the entirety of the inheritance and left nothing for Gabrielle's ongoing care needs.
Had Gabrielle's sister executed a will with proper special needs planning, she could have directed her estate — or the portion intended for Gabrielle — into a third-party Special Needs Trust. Unlike a first-party trust funded with the beneficiary's own assets, a third-party SNT is established with someone else's money and carries no Medicaid payback requirement at death. Gabrielle would have received the benefit of those funds without triggering the DDD lien, and without disrupting her Medicaid eligibility.
This is one of the most important and underappreciated points in elder law and disability planning: the person doing the planning is often not the disabled individual, but the family member who intends to leave them something. A parent, sibling, or other relative who has a loved one receiving public benefits should have a will — and that will should account for the beneficiary's disability. Leaving assets outright to a Medicaid or DDD recipient, however well-intentioned, can do more harm than good.
The Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) was enacted in New Jersey to provide clarity and structure for fiduciaries seeking access to a decedent’s or incapacitated person’s digital assets. The law balances the privacy expectations of individuals with the practical needs of estate and trust administration.
Key Definitions
Digital Asset: An electronic record in which an individual has a right or interest, such as email accounts, social media profiles, cryptocurrency, or cloud-stored files.
Fiduciary: A person authorized to act on behalf of another, including:
Executor or administrator of an estate
Agent under a power of attorney
Trustee
Court-appointed guardian
Custodian: A person or business that stores digital assets (e.g., Google, Meta, Apple).
Fiduciary Access Categories
RUFADAA applies to four types of fiduciaries:
Personal Representatives (Executors/Administrators) – May access the digital assets of a deceased individual.
Agents under a Power of Attorney – May manage digital assets during the principal’s lifetime, if specifically authorized.
Trustees – May access digital assets titled in the name of the trust.
Court-Appointed Guardians – May access digital assets with court approval.
Hierarchy of Access Authorization
RUFADAA establishes a three-tiered system to determine fiduciary authority:
1. Online Tools
If the digital service provider (such as Google or Facebook) offers a tool for account holders to direct post-death access (e.g., Google’s Inactive Account Manager or Facebook’s Legacy Contact), that direction overrides any conflicting instructions in a will, trust, or power of attorney.
2. Legal Documents
If no online tool exists or is used, instructions provided in estate planning documents control. These documents must specifically authorize access to digital assets; general powers are not sufficient.
3. Terms of Service Agreements (TOSAs)
If neither an online tool nor legal documents address the issue, the service provider’s Terms of Service Agreement governs access. Most TOSAs restrict access to authorized users only.
Scope of Access
Fiduciaries may seek access to:
Content: The actual substance of communications (e.g., emails, messages), which requires explicit authorization.
Catalog Information: Metadata such as sender, recipient, and timestamps, which may be accessible with broader authority.
Service providers may limit access to catalog information if content access is not authorized.
Steps for Fiduciaries to Request Access
Fiduciaries must usually provide the custodian with:
A written request for access;
A certified copy of the death certificate (for estates);
Documentation of fiduciary authority (e.g., letters testamentary, power of attorney, or court order); and
A copy of the will, trust, or other document granting digital access rights.
In some cases, custodians may require a court order to release certain information.
Custodian Protections
Custodians are not liable for acts done in good faith under RUFADAA.
They are permitted to request additional documentation or a court order.
Custodians may limit access to specific portions of data or provide it in alternative formats.
User Privacy and Federal Law Compliance
If the account holder prohibited disclosure via legal documents or online tools, fiduciaries cannot override that instruction.
RUFADAA does not override federal privacy laws, such as the Stored Communications Act or the Computer Fraud and Abuse Act.
Practical Takeaways for New Jersey Residents
Estate planning documents should expressly authorize access to digital assets.
Individuals should consider using online tools offered by service providers to designate account access.
To avoid confusion and uncertainty, make sure there is no conflict between estate planning documents and online tools offered by service providers
Appointing a digital executor or agent can help ensure smooth management of online accounts.
Without proper planning, loved ones may be unable to access essential financial or personal information stored digitally.
In today’s world, estate planning isn’t just about physical property or bank accounts. Increasingly, individuals are amassing significant digital assets—social media accounts, cryptocurrency, online business platforms, cloud storage, digital photos, frequent flyer miles, and more. If you’re a New Jersey resident, planning for these assets is not only prudent but essential. Without a clear plan, your digital legacy could be lost, inaccessible, or mismanaged after death.
What Are Digital Assets?
Digital assets include any online account or digital file that you own or control. This could be:
Financial accounts like PayPal, Venmo, cryptocurrency wallets, and investment apps
Social media and email (Facebook, Instagram, Gmail)
Subscriptions (Netflix, Dropbox, Amazon)
Online businesses or monetized content on platforms like Etsy, YouTube, or Substack
Intellectual property such as domain names, eBooks, or digital art stored online
New Jersey and the Revised Uniform Fiduciary Access to Digital Assets Act
New Jersey has adopted Revised Uniform Fiduciary Access to Digital Assets Act(RUFADAA), a law that governs how fiduciaries (like executors of a will or agents under a power of attorney) can access your digital assets. Under RUFADAA:
You can authorize or restrict access to digital assets via a will, trust, or power of attorney.
If no specific authorization exists, the service provider’s Terms of Service Agreement usually controls access.
Some platforms allow you to name a “legacy contact” (Facebook for example) or designate what happens to your data after death (Google Inactive Account Manager).
Why You Need a Digital Estate Plan
Without proper planning, loved ones may not be able to access essential financial records or sentimental content. Worse, your identity or business could be compromised if unattended digital accounts remain open.
A digital estate plan ensures:
Access to critical financial information
Protection of sensitive personal data
A clear path for digital legacies or online businesses
Fulfillment of your final wishes, including digital memorials or deletions
Steps to Include Digital Assets in Your Estate Plan
Inventory your digital assets. List your accounts, usernames, and approximate value or importance.
Choose an agent. Name someone you trust to handle these assets—this can be part of your will or separate, depending on complexity.
Document access. Store passwords securely using a password manager and include instructions in a secure letter of instruction or digital vault.
Provide legal authorization. Update your estate planning documents to explicitly authorize access to digital assets in accordance with RUFADAA.
Review terms of service. For major accounts, check if the provider allows you to set legacy preferences.
A Final Word
In New Jersey, failing to address your digital assets in your estate plan can create legal uncertainty and emotional stress for your loved ones. As technology continues to evolve, so too must our approach to estate planning. If you’re unsure where to begin, consult an estate planning attorney who understands the unique challenges and opportunities posed by digital assets.
If you inherit a house in New Jersey with someone else and you disagree on whether it should be sold, the situation will likely fall under property law and co-ownership rules. Here’s an overview of your options:
1. Try to Negotiate or Reach an Agreement
Discuss the situation with the co-owner to try and reach a compromise. This could involve buying out the other person’s share, agreeing to rent the property, or setting terms for its sale.
Mediation with a neutral third party can help if direct negotiation isn't successful.
2. Partition Action (Court Involvement)
If you cannot agree, either party can file a lawsuit for partition in the Superior Court of New Jersey.
A partition action can result in one of two outcomes:
Partition by Sale: The court orders the property to be sold, and the proceeds are divided between the co-owners according to their ownership shares.
Partition in Kind: If feasible, the court physically divides the property. However, this is rare for residential properties because splitting a house isn’t practical.
Legal costs will be involved, and the court's decision is binding.
3. One Party Buys Out the Other
If one person wants to keep the house, they could offer to buy out the other’s share. An appraisal may be needed to determine the home's fair market value.
This option avoids the costs and delays of a court proceeding.
4. Co-Ownership Agreement
If you and the co-owner can reach a temporary agreement, you might create a written contract outlining how the property will be managed, sold, or divided in the future.
5. Sale Through Agreement
If both parties ultimately agree to sell, you can jointly list the house for sale and split the proceeds according to your ownership percentages.
Key Considerations:
Legal Counsel: It’s advisable to consult a attorney experienced in New Jersey law. They can guide you through negotiations, prepare documents, or represent you in court if necessary.
Costs: If the matter goes to court, both parties may incur legal and court fees.
Time: A partition action can take months or even years to resolve.
Property Expenses: Until the matter is resolved, co-owners are typically jointly responsible for property taxes, mortgage payments (if applicable), and upkeep.
