by Jose D. Roman | Oct 20, 2026 | Estate Planning, Last Will and Testament, Living Will, Power of Attorney, Trusts, Uncategorized
If you have attended a free dinner seminar on estate planning, you have heard the pitch. Probate is a nightmare, the government is coming for your house, and the only thing standing between your family and financial ruin is a revocable living trust — available tonight at a special seminar price.
Here is the honest answer I give my clients: a revocable living trust is a genuinely useful tool, but in New Jersey it is oversold. Whether you need one depends entirely on your situation, and most of what the seminars claim is either exaggerated or flatly wrong.
What a Revocable Living Trust Actually Is
A revocable living trust is a legal arrangement you create during your lifetime. You transfer your assets — house, bank accounts, investments — into the trust and name yourself trustee. You keep complete control: you can spend the money, sell the property, change the terms, or revoke the whole thing whenever you want. Under N.J.S.A. 3B:31-43(a), a New Jersey trust is revocable unless its terms expressly say otherwise.
When you die, your chosen successor trustee steps in and distributes everything per your instructions, with no court proceeding for the assets actually in the trust. For income tax purposes, the IRS pretends the trust does not exist while you are alive — a revocable trust is a grantor trust, so all income is taxed to you exactly as if you still held everything in your own name.
Does a Revocable Trust Save You Meaningful Probate Costs in New Jersey?
The number one selling point is probate avoidance. In some states that warning has real teeth. In New Jersey, it mostly does not. I have written in detail about what probate actually looks like here: for a typical uncontested estate, it is an administrative process through the county Surrogate's Court, with typical government filing fees and costs, and no courtroom appearance required. Attorney fees are not set by a statutory percentage the way they are in California or Florida.
So when a trust is marketed to you mainly as New Jersey probate avoidance, ask what problem is actually being solved — for many families, that probate was never going to be expensive. Avoiding probate may have some value, but it is one benefit among several, and it should not be the whole sales pitch.
Does a Revocable Trust Save You Taxes?
This is where the seminar pitch falls apart for New Jersey residents. A revocable living trust does not reduce your taxes — not federal, not state.
New Jersey repealed its estate tax for individuals who died on or after January 1, 2018. There is nothing left for a trust to avoid. The New Jersey inheritance tax, on the other hand, is very much alive — and a revocable trust does nothing to escape it. Because you keep the power to revoke, the state treats the trust property as a transfer taking effect at your death, taxable under N.J.S.A. 54:34-1(c). The tax depends on who receives the assets, not on whether they passed through probate or a trust. Transfers to a spouse, children, parents, and other Class A beneficiaries are exempt either way; transfers to more distant relatives are taxed either way. The trust changes the mechanics, not the tax bill.
Does a Revocable Trust Protect Your Assets?
Because you can revoke the trust and take everything back at any time, your creditors can reach the assets too — a court can simply order you to revoke it. If creditor protection is your goal, a revocable trust provides none.
The same logic applies to Medicaid, and this is the version I see most often. New Jersey's Medicaid rules are explicit: for a revocable trust, the entire corpus counts as a resource available to you (N.J.A.C. 10:71-4.11(e)1.i). Every dollar in the trust counts toward the $2,000 resource limit. Putting your house into a revocable living trust does absolutely nothing for Medicaid eligibility. If sheltering assets from long-term care costs is the objective, that requires an irrevocable trust under completely different rules, including the five-year lookback.
What It Actually Does Well
With the myths cleared away, here is what the trust genuinely offers. First, privacy: probate is a public process and your will becomes a public record, while a trust is administered privately by your successor trustee. Second, out-of-state property: a Florida vacation home or Pennsylvania condo held in the trust avoids a separate probate proceeding in each of those states.
Third, incapacity planning. Your successor trustee can step in and manage trust assets without court involvement — but only for assets actually in the trust. Property left outside it may still require a guardianship proceeding, and a court-appointed guardian can, with court approval, exercise your powers over the trust itself. A trust is a strong incapacity tool, but it does not replace a durable power of attorney or healthcare documents. As noted above, it also does not help an incapacitated person qualify for long-term care Medicaid.
Fourth, control over distributions. You can keep a minor child's inheritance in trust until an age you choose, and in a blended family you can provide for a surviving spouse for life while preserving the remainder for your children. One caution: if a beneficiary has a disability and receives means-tested benefits, a standard revocable trust can disqualify them — that situation calls for a special needs trust, a different instrument.
The Step Everyone Skips: Funding the Trust
The failure I see more than any other: someone pays several thousand dollars for a beautiful trust document, takes it home, puts it in a drawer, and never funds it. A trust only controls the assets you actually transfer into it — the house needs a new deed, the accounts need retitling, and each transfer takes paperwork.
An unfunded trust is an expensive stack of paper. Assets left outside it go through probate exactly as if the trust did not exist, which means the client paid for probate avoidance and got probate anyway. If you create a trust, fund it promptly and completely, and review it whenever you acquire significant new assets. Treat funding as part of the engagement, not homework for later.
When I Tell Clients Yes — and When I Tell Them No
I recommend a revocable living trust without hesitation for clients who own real estate in another state, have strong privacy concerns, want incapacity planning beyond a power of attorney, have minor children with significant assets, or are navigating a blended family.
I talk clients out of one just as often. If your estate is straightforward — a New Jersey home, bank and investment accounts, everything going to your spouse and then your children — a well-drafted will, current beneficiary designations, and payable-on-death designations accomplish essentially everything a trust would, at a fraction of the cost. A properly drafted and funded trust typically runs several thousand dollars. Spending that to solve a problem you do not have is not planning.
The Bottom Line
A revocable living trust is a tool, not a magic wand that solves all potential problems. It does not cut your taxes, does not protect assets from creditors or Medicaid, and in New Jersey it does not buy the dramatic probate savings the seminars may advertise. What it does buy — privacy, control over distributions, incapacity planning, and multi-state simplicity — is genuinely valuable for the right family. The right question was never "should I get a living trust." It is "what problem am I trying to solve." If the answers involve privacy, out-of-state property, minor children, a blended/second family, or incapacity, a trust may be exactly right. If they involve taxes, asset protection, or fear of New Jersey probate, you are being sold a solution to a problem you do not have — and the documents you actually need are a current will, a durable power of attorney, a healthcare proxy, and a living will. Before you sign anything at a seminar, talk to an attorney who asks about your family first and reaches for a product second.
by Jose D. Roman | Sep 29, 2026 | Estate Administration, Estate Planning, Intestate Estate (No Will), Last Will and Testament, Probate
What Happens to a Timeshare When You Die?
Many people buy a timeshare thinking it will provide years of family vacations while accumulating an asset. What often gets overlooked is what happens to that timeshare after the owner's death. Unlike many assets, a timeshare can continue generating annual maintenance fees, special assessments, taxes, and other obligations long after the owner is gone.
If you own a timeshare, or if a loved one recently passed away owning one, understanding how New Jersey estate law treats these interests can help avoid unpleasant surprises.
Is a Timeshare Part of Your Estate?
A timeshare is generally considered property owned by the deceased person. If the timeshare is titled solely in the owner's name and does not pass automatically to a joint owner or trust, it will typically become part of the probate estate and be administered by the executor. Whether the timeshare is a deeded real estate interest or a contractual right-to-use arrangement, it is generally treated as an asset of the estate. For a deeded interest, ancillary probate in the state where the resort is located may be required. This can increase the cost and complexity of estate administration. For a right-to-use contract, no real property is transferred and ancillary probate is generally not required, but the contractual obligations may still bind the estate.
Are Your Heirs Required to Take the Timeshare?
One of the most common myths about timeshares is that children automatically become personally responsible for them after a parent's death.
Under New Jersey law, beneficiaries generally have the right to disclaim an inheritance. A valid disclaimer allows a beneficiary to refuse property passing to them through a will, trust, or intestacy. If an heir properly disclaims the timeshare, the law treats that person as though they predeceased the decedent for purposes of that inheritance. The property then passes to the next eligible beneficiary. It is important to note that the next beneficiary in line must also file a disclaimer if they too do not want the timeshare.
However, heirs should be careful. Taking ownership, using the timeshare, or otherwise accepting benefits before seeking a disclaimer may limit their ability to refuse the interest later. In addition, a disclaimer must be made within nine months of the transfer (generally, the date of death) or within nine months after the disclaimant turns 21.
Is the Estate Responsible for Ongoing Timeshare Fees?
Although heirs may decline the inheritance, the estate still owns the timeshare during the estate administration process. As a result, maintenance fees, assessments, taxes, mortgage payments, and other contractual obligations may continue to accrue.
Like other creditor claims, these obligations may need to be addressed before distributions are made to beneficiaries. In many cases, an executor will evaluate whether the timeshare has any market value. Unfortunately, many timeshares have little or no resale value while continuing to generate annual expenses.
If the estate has sufficient assets, creditors may seek payment through the estate administration process. New Jersey law generally provides that debts are paid from estate assets before distributions to heirs. If the estate is insolvent or the timeshare is the only asset, creditors may simply be unable to collect. Keep this in mind because timeshare companies sometimes pursue aggressive collection tactics against estates and even against heirs personally.
What Should an Executor Do With a Timeshare?
Each situation is different, but a good first step is obtaining the timeshare documents. The executor should determine:
- Whether the interest is deeded real estate or a contractual membership.
- Whether a loan or mortgage remains outstanding.
- The amount of annual maintenance fees and assessments.
- Whether the timeshare company offers a surrender or deed-back program.
- Whether the interest has any realistic resale value.
In some cases, surrendering the timeshare to the resort may be the most economical solution. In others, a sale or transfer may be possible. Ignoring the issue rarely makes it disappear.
How Should a Timeshare Be Addressed in an Estate Plan?
If you own a timeshare consider selling or surrendering it before you pass away. Otherwise, your estate plan should specifically account for it. Far too often, people leave timeshares to heirs who have no interest in owning them. This can create unnecessary administrative costs, family conflict, and ongoing financial obligations.
A comprehensive estate plan should identify all real estate interests, including vacation properties and timeshares, and consider whether ownership should be transferred during life, placed into a trust, sold, surrendered, or specifically addressed in a will.
Just as important, your family should know the timeshare exists. Many executors discover a timeshare only after maintenance fee invoices begin arriving months after death. If you have not reviewed your estate plan recently, this is a good reminder to make sure assets such as timeshares, vacation properties, and other real estate are properly accounted for.
You may also find my articles on probate, inheriting a home, and a last will and testament helpful when evaluating how a timeshare fits into your overall estate plan.
The Bottom Line
A timeshare does not disappear when its owner dies.
In most cases, it becomes part of the estate, may need to pass through probate, and can continue generating expenses until it is transferred, sold, surrendered, or otherwise resolved. While heirs generally cannot be forced to accept an unwanted timeshare, the estate may still have to address the financial obligations associated with it.
Because timeshares often create unique challenges during estate administration, they should be specifically addressed as part of every New Jersey estate plan.
by Jose D. Roman | Sep 1, 2026 | Estate Administration, Estate Planning, Last Will and Testament, Legal Bulletin, NJ Supreme Court, Probate
Families often assume that a Last Will and Testament clearly reflects a loved one's wishes and that those wishes will be carried out without controversy. Unfortunately, that is not always the case. A recent decision by the New Jersey Supreme Court, Christakos v. Boyadjis, 262 N.J. 447 (2026), highlights how misunderstandings, outdated estate plans, and last-minute revisions can lead to years of probate litigation and significant expense.
The case involved two brothers, Peter and Nicholas Christakos, who had signed wills in 2003 providing that their estates would pass to one another and, ultimately, to certain family members. More than a decade later, they consulted an attorney about updating their estate plans. During that process, the attorney incorrectly interpreted provisions of the existing Wills and later drafted new Wills that did not fully accomplish what the brothers intended. After both brothers died, multiple probate disputes followed, eventually leading to a legal malpractice lawsuit against the drafting attorney.
The New Jersey Supreme Court was asked to decide whether a family member who was not a client of the attorney could sue the attorney for malpractice. The Court held that, under the circumstances presented, she could not. In adopting Section 51 of the Restatement (Third) of the Law Governing Lawyers, the Court emphasized that attorneys generally owe duties to their clients, not to every person who might have expected to inherit from an estate. Because there was insufficient evidence that the decedents intended the claimant to be a beneficiary under the later wills, the malpractice claim could not proceed.
Although the decision focuses on attorney liability, the more important takeaway for New Jersey families is the value of careful and proactive estate planning.
One lesson is the importance of regularly reviewing an estate plan. Many people create a Will and never look at it again. Over time, however, family relationships change, beneficiaries pass away, financial circumstances evolve, and personal priorities shift. An estate plan that made perfect sense twenty years ago may no longer reflect a person's wishes today. Regular reviews help ensure that documents remain consistent with current goals and avoid surprises after death. For more information about creating and updating a Will, see my article on Last Wills and Testaments in New Jersey.
The case also demonstrates the importance of clearly expressing testamentary intent (what the person signing the Will intends). Much of the litigation centered on determining what the brothers actually wanted to happen to their property. When estate planning documents leave room for interpretation, surviving family members may spend years fighting over those questions in court. Clear drafting, thorough communication with counsel, and careful documentation of significant decisions can substantially reduce the likelihood of future disputes.
Another important issue is planning before health concerns become urgent. Questions regarding diminished capacity frequently arise when Wills or estate planning documents are executed later in life. While most older adults retain the ability to make valid estate planning decisions, waiting until a medical crisis occurs can increase the risk of challenges after death. Addressing estate planning needs early is often one of the most effective ways to protect both the plan and the family members who may later be called upon to defend it.
The decision is also a reminder that family members should avoid making assumptions about inheritance rights. A relative may have been included in an earlier Will but omitted from a later one. Beneficiary designations, trusts, and revised estate planning documents can dramatically alter who ultimately receives property. Expectations based on old documents or family conversations often lead to disappointment and lawsuits.
For many New Jersey families, real estate is among the most valuable assets in an estate. Questions about who inherits a home, whether the property should be sold, and how ownership transfers after death are common sources of conflict. If you are dealing with inherited real estate, my article on Inherited Homes in New Jersey discusses several of the practical and legal issues that may arise.
The broader lesson of Christakos v. Boyadjis is that good estate planning is not simply about signing documents. It is about creating a legally sound plan that accurately reflects your wishes, communicating those wishes clearly, and revisiting the plan as life changes. Taking those steps can help minimize uncertainty, reduce the risk of expensive probate disputes, and provide peace of mind for both you and your loved ones.
Estate disputes do not always end up in court. In some cases, alternative dispute resolution may offer a more efficient path forward. You can learn more in our article on Arbitration Clauses and New Jersey Will Disputes. Likewise, major life events can have unexpected consequences for inheritance rights, as discussed in my post about Death During a Pending Divorce in New Jersey.
by Jose D. Roman | Aug 18, 2026 | Estate Administration, Estate Planning, Last Will and Testament, Probate
In a prior post, I explained that you cannot arbitrate a Will dispute in New Jersey — at least not through an arbitration clause buried in the Will itself. That remains the law. But a July 2026 decision from the New Jersey Appellate Division, In re Estate of Roseanne Dyevich, A-1192-24 (App. Div. July 22, 2026), illustrates an important distinction: when the parties themselves voluntarily agree to submit an estate dispute to arbitration, that agreement is enforceable — and the arbitrator's decision is binding and difficult to overturn.
What Happened in the Dyevich Estate
Nicholas and Roseanne Dyevich had four sons: Kevin, James, Thomas, and Michael. After both parents died — Nicholas in 2015 and Roseanne in 2019 — the family found itself in a tangle of litigation. Six separate court matters were pending, involving disputes over the administration of Nicholas's estate, Roseanne's incapacity and guardianship, the disposition of real property, allegations of financial misappropriation, and the conduct of James as executor and guardian.
Rather than litigate all six cases to conclusion, the parties — including a non-family creditor and a corporate entity — agreed to resolve everything through binding arbitration. The arbitrator issued a comprehensive written opinion and a final judgment addressing all of the contested issues. Kevin, who had served as executor, then moved to vacate the award in the trial court, arguing that the other brothers had engaged in misconduct that tainted the arbitration. The trial court denied his motion. Kevin appealed.
The Court's Ruling: Misconduct by a Party Is Not Enough
The Appellate Division affirmed the denial and offered a clear statement of the law. Under the New Jersey Uniform Arbitration Act, N.J.S.A. 2A:23B-23(a), a court may vacate an arbitration award only for six specific reasons. Those grounds are narrow and focused on process, not outcome — things like fraud by the arbitrator, evident partiality of the arbitrator, refusal to hear material evidence, or an arbitrator exceeding their authority.
Kevin's argument was that the defendants had committed fraud — doctoring photographs, destroying financial records, failing to pay the accounting firm. But the court pointed to the critical distinction: under New Jersey law, an arbitration award "may be vacated only for fraud, corruption, or similar wrongdoing on the part of the arbitrators." Rappaport v. Pasternak, 260 N.J. 230, 249 (2025) (quoting Chief Justice Wilentz in Perini Corp. v. Greate Bay Hotel & Casino, Inc., 129 N.J. 479, 548 (1992)). Alleged misconduct by the opposing party does not meet that standard.
The court also declined to consider several arguments Kevin raised for the first time on appeal — including a new claim that the defendants had doctored photographs to influence the arbitrator. Under long-standing New Jersey appellate practice, issues not raised before the trial court are generally not considered on appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
The Key Distinction: Voluntary Arbitration vs. a Will Clause
This case is easy to confuse with the Hekemian situation I wrote about earlier, but the two are fundamentally different. In Hekemian, a testator attempted to impose arbitration on beneficiaries through a clause written into the Will — a unilateral document that the beneficiaries never agreed to, could not negotiate, and were never asked to sign. The Appellate Division held that clause unenforceable because it lacked mutual assent and was incompatible with the Probate Code's grant of authority to the Superior Court over Will disputes.
In Dyevich, there was no Will clause at issue. All the parties — represented by counsel, fully aware of the pending litigation — sat down and agreed among themselves to submit their disputes to an arbitrator. That is a voluntary, bilateral agreement to arbitrate. It is exactly the kind of arrangement that New Jersey's arbitration statute is designed to support and enforce.
The rule, stated plainly: a testator cannot force beneficiaries into arbitration through a Will. But parties to an active estate dispute can agree — on their own terms, with full knowledge — to resolve that dispute in arbitration. Once they do, the resulting award carries the weight of a court judgment and can be vacated only in very limited circumstances.
What This Means for NJ Families Navigating Estate Disputes
Estate disputes are expensive, slow, and exhausting — especially when, as in the Dyevich family's case, multiple cases are pending at once and the litigation involves contested guardianships, financial accounts, and real property. Voluntary arbitration can be a practical path to resolution that offers privacy, speed, and finality. New Jersey courts strongly support it.
But finality cuts both ways. The same deference that makes an arbitration award powerful also makes it very difficult to undo. The New Jersey Supreme Court has described private arbitration awards as subject to "an extraordinarily deferential standard of review." Rappaport, 260 N.J. at 250. An award will not be overturned simply because a court might have decided the facts or the law differently. Courts are not in the business of second-guessing arbitrators.
If you are involved in an estate dispute and someone suggests arbitration as a way to resolve it, understand what you are agreeing to in advance. Once the arbitration is complete and the award is entered, your options to challenge it are narrow. You will not succeed by pointing to the other side's bad behavior during the proceedings — that is a matter for the arbitrator, not for the courts, after the fact.
The bottom line from Dyevich is this: arbitration works in the estate context when the parties choose it freely and with full information. What does not work — as Hekemian makes clear — is a testator trying to impose that choice on beneficiaries from beyond the grave.
by Jose D. Roman | Jun 30, 2026 | Estate Administration, Estate Planning, Intestate Estate (No Will), Last Will and Testament, Probate
A New Jersey appellate decision decided June 29, 2026 — In the Matter of the Estate of Agnieshka Burke — offers a stark illustration of what can happen when someone dies while a divorce is still pending. The case involves a $500,000 life insurance policy, a Will that named the estranged husband as executor and sole beneficiary, and a fight between that husband and the decedent's sister over who gets what. The court's ruling touches on three issues that matter to anyone who is separated, going through a divorce, or simply has not updated their estate plan in years: whether your Will still works the way you intended, who controls your estate when you die, and what happens to assets like life insurance that pass outside your Will entirely.
Dying With a Divorce Pending
Under New Jersey law, a divorce action ordinarily ends when a final judgment of divorce is entered. If one spouse dies before that happens, the divorce proceedings have traditionally abated — meaning they simply stop. The surviving spouse inherits under the Will or under the intestacy laws if there is no Will, and the court's power to divide marital property (called equitable distribution) disappears.
The Legislature changed this rule in January 2024 by adding subsection (h)(2) to the equitable distribution statute, N.J.S.A. 2A:34-23. The new provision states that if a divorce complaint has been filed and either party dies before a final judgment is entered, the court's authority to divide marital property does not abate. In Burke, the Appellate Division confirmed that this right belongs not just to a surviving spouse, but also to the estate of the spouse who died. In plain terms, if you file for divorce and then die before it is finished, your estate (acting through a personal representative) may still be able to pursue a share of the marital assets.
This is a significant development for anyone with a pending divorce. It means that death during divorce proceedings does not necessarily resolve the property dispute. It may simply transfer the fight to a different courtroom.
Your Executor May Have a Conflict of Interest
In Burke, Agnieshka had named her husband Jared as executor of her Will. After she died with the divorce still pending, Jared was appointed executor and also stood as the primary beneficiary under both her Will and life insurance policy. The court found this created an irreconcilable conflict of interest. As the Appellate Division put it, Jared's responsibilities to represent the estate's interests and his own personal interests were "directly adverse."
The court did not remove Jared as executor entirely, but it disqualified him from acting as executor in connection with the equitable distribution dispute — the exact proceeding where the estate's most valuable rights were at stake. It then ordered the Probate Part to appoint a substitute executor for that limited purpose, and noted that Agnieshka's Will had already named her sister as successor executor.
The lesson here is direct. If you are separated or in the middle of a divorce, your spouse is most likely still named in your Will as executor, beneficiary, or both. Unless your Will is updated or the divorce is finalized, that person retains legal authority over your estate when you die. New Jersey law does automatically revoke certain transfers to a former spouse after a divorce is complete under N.J.S.A. 3B:3-14, but that protection does not kick in until the divorce is actually finalized. Separation alone changes nothing.
Non-Probate Assets Are a Separate Problem
Most people assume their Will controls everything they own. It does not. Assets that pass by beneficiary designation — life insurance, retirement accounts, payable-on-death bank accounts — transfer directly to the named beneficiary regardless of what the Will says. These are called non-probate assets, and they pass outside of probate entirely.
In Burke, Agnieshka's $500,000 life insurance policy named Jared as the sole beneficiary. The couple was separated and a divorce was pending, but she had not changed the designation. The Appellate Division sent the question of who is entitled to those proceeds to the Family court for resolution, but it was careful to note that Jared remains the named beneficiary and that no settlement agreement or final divorce judgment existed that would automatically revoke that designation under N.J.S.A. 3B:3-14.
This is where many people are caught off guard. You can update your Will, but if you forget to change the beneficiary on your life insurance policy or your 401(k), those assets still pass directly to your estranged spouse. The only way to ensure your beneficiary designations reflect your current intentions is to change them directly with the insurance company, bank, or plan administrator — a Will cannot override them.
What You Should Do Now
If you are separated or going through a divorce, your estate plan needs immediate attention on several fronts. First, after consulting your divorce attorney, review and update your Will to name a new executor and new beneficiaries. Second, also after consulting your divorce attorney, change beneficiary designations on every account that carries one — life insurance, IRAs, 401(k)s, annuities, payable-on-death accounts. Third, review any powers of attorney and health care proxies that name your spouse as your agent. In New Jersey, the divorce statute does not automatically revoke a health care proxy naming a spouse, so your estranged husband or wife may still have the legal authority to make medical decisions for you if you become incapacitated. For more on how that works, see who makes medical decisions in New Jersey.
There are also Medicaid planning considerations that arise when a couple separates but does not yet divorce — particularly for couples where one spouse may need long-term care. Medicaid's spousal protection rules treat legally married couples as a unit for purposes of resource assessment, which can affect eligibility and planning options. For more on that issue, see Medicaid and divorce in New Jersey.
The Burke case is a reminder that separation is not a legal status that protects you or your estate. Until a divorce is final, your spouse remains your legal spouse for virtually every purpose that matters in estate planning. If your circumstances have changed, your documents need to change with them.
by Jose D. Roman | May 12, 2026 | Estate Administration, Estate Planning, Last Will and Testament, Probate, Trusts
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.