Trusts, and the Probate Process

It is likely that you’ve heard of a trust. In case you’re unsure what it is, though, a trust is simply this: A trust is an arrangement where things like property, money, etc. are held in safekeeping. What kind of trust should you set up if you’re thinking about it? In this article, we’ll answer that question! Let’s take a look.

Why Do I Need A Trust?

Trusts created under a will can be set up for just about anyone: minor children, adults, or any other person whom you have designated as a beneficiary. It can also be done for a multitude of reasons like tax savings, giving the beneficiary the ability to handle finances or if you have a particular way you would like to distribute all of your assets.

Why Do I Need A Trust?

A trust that is created under a paragraph in your will serves to appoint a trustee. The appointed person then both administers and invests the funds for the trust, and they also pay income and/or principal from the trust following the terms and guidelines that are named in the will.

Attorney Justin Scott sheds more light on the matter. “It can be nerve-wracking to try and think of if you’ve covered all your bases when planning for the future. It’s no question that something will inevitably get left out or you’ll forget this or that. And while you can most certainly create a will on your own, it can still be a bit confusing. If you’d like assistance with drawing up a will or living trust, or if you have questions about anything else, my team and I would be happy to assist you, and get you the help you need.”

Contact Scott Counsel to Learn More About Wills and Trusts

So as you can see, there are a couple of very good reasons to have a will and trust. Of course, this may not be everything involved in the process; it wasn’t meant to be. Rather it is a basic overview of the steps, in order that you may have a general idea of what to expect if you’re thinking of setting up a will and trust for your loved ones. As Mr. Scott said, it can be difficult to know whether you’ve covered all your bases. And while it’s true that you may not get them all, at least by having both, you can rest easy knowing you’ve covered most of them. And most of them are better than none.

What Happens Without a Will?

I’ll let you in on a little secret… I have a lot of stuff. I bet you probably do too, right? It can be kind of scary trying to figure out what will happen to it after you’re gone. You might be even more scared if you don’t yet have a will or just simply don’t want to make one. In either case, I have some information that you just might find helpful, and then I can feel good about myself again. So here we go!

What To Do if There is No Will?

In the great state of New Jersey, if you have no idea what to do and you have no will, the law will come to bat for you and decide how to divide up all those things you left behind. For now, though, let’s just look at the stuff that’s left in your name alone. There are seven ways this can go, and they are as follows:

  • If you die and leave behind your spouse and a child (from that same marriage), your spouse gets EVERYTHING. (This does not include stepchildren or children from a previous marriage).
  • If you die and leave behind a spouse and child from a previous marriage, that spouse gets 25% of your estate, but no less than $50,000 or more than $200,000, plus one-half of any balance on the estate. Your kids get that balance equally, while grandchildren take the share of the deceased parent.
  • Say you die and leave behind a spouse, child(ren), and a stepchild or children, the spouse gets the first 25%. No less than $50,000 or more than $200,000, plus three-fourths of any estate balance. Again, children divide it equally and grandchildren take the share of the deceased parent.
  • If you die and have a spouse but no children, but you have your parents, the deal is the same as before, only this time your parents split the balance of the estate equally between themselves.
  • If you die and you have a child or children but no spouse, your kids inherit equally, while grandchildren will inherit the share of the deceased parent.
  • If you die and you don’t have any of those, but you have parents, your parents get it all. If you don’t have parents, your siblings will inherit equally. For nieces and nephews, it is the same as above: they inherit what their parents left behind.
  • Finally, when no immediate family is in the picture, your property can go to all those to whom you are distantly related to (like grandparents, aunts, uncles, cousins, etc.). Or, it can even be taken by the State if all else fails.

Contact Scott Counsel Today

So here’s a quick glimpse for you at what happens to your things after you’re gone. New Jersey estate planning attorney Justin Scott is quick to assure us. “We know you have a lot of memories and all those things mean a lot to you,” he says, “so please rest assured that we will do everything we can to make sure those precious memories are very well taken care of. Contact New Jersey Estate Planning attorney, Justin Scott, to get started on your will.

The Importance of Having a Will

Okay, so, everyone probably already knows what a will is. If you’ve been around long enough, it’s likely you’ve at least heard of one. For those who may not be familiar, let’s talk a little about what a will is and why it’s handy to have one.

What is a Will?

The most basic of basic definitions is this: A will is a piece of paper (or multiple pieces) that tells everybody who gets what when you kick the bucket. If done right, it should name an executor/rix, and also an alternate, just in case the first person doesn’t want to step up. It should name a trustee if a trust is available, and also a Guardian to take care of any minor children.

It should also state that anyone named in it should not be required to post a bond for their position, as well as specific inheritances and determine how the rest of the stuff (including the estate) should be divided up.

How Can I Have a Will?

Now, I know what you’re thinking: Can I have a will? And the good news is yes, you can! Just as long as you’re over the age of eighteen. You just need two people who are at least eighteen too to sign it with you as witnesses. If it’s done right, you shouldn’t have any issues with proving it, as it will become self-proving with the signatures by the same witnesses as well as that of a notary public.

Why Do I Need a Will?

That’s great and all, right? But why do you even need one in the first place? I’m glad you asked! As stated earlier, a will helps people know who gets what from all your piles of stuff. If you don’t have a will, there could be arguments and all sorts of unpleasant things can happen, so it’s better to have one than not. But, it’s even better to have one that is done properly.

After the will is executed, any changes should be made through either a codicil or an entirely new will. Any markings, cross-outs or handwritten changes can leave the Surrogate unable to act and force probate in the Superior Court.

Finally, the personal representative named in the will also have a list of responsibilities. These include:

  • Locating and performing an inventory of all the estate’s assets
  • Paying outstanding debts
  • Filing appropriate inheritance or income tax returns
  • Having necessary paperwork ready for the transferring of property
  • Paying any and all fees
  • Opening and maintaining an estate checking account
  • And finally, disbursing estate funds to beneficiaries and filing refunding bonds and releases, which are documents that show someone received his or her inheritance

According to Justin Scott, a New Jersey estate planning attorney, “death and all that comes with it is a confusing enough time for anyone.” When mourning a loved one, the last thing anyone needs is to be confused by things they don’t necessarily understand or, quite frankly, care about. This is where we step in. We can assist you in figuring things out and, hopefully, alleviate some of your burden.”

Contact our New Jersey Estate Planning Lawyer to Learn More

If you have any questions or concerns about drafting or executing a will in New Jersey, please call Scott Counsel or fill out our contact form. Our New Jersey Wills & Trusts lawyers are here to help guide you along the process to give your family the peace of mind they need.

Why Do You Need A Living Trust And A Will?

Some things in life just go well together: Cereal and milk, peanut butter and jelly, movies and popcorn. But there’s another couple of things that go well together too—living trusts and wills. Now, if you know even a smidge about living trusts and wills, you might think that you would be just fine without a trust if you’ve already got a will—since they’re basically kind of the same thing. The truth is, however, that it’s a good idea indeed to have both if you don’t already.

“But why?” I hear you screaming at your computer screen. “Why do I actually need both?”

Living Trusts Never Include Every Single Thing You Own

The biggest reason why it’s important to have a will is that a living trust only covers all the stuff you’ve listed, in writing, in the trust. And almost no one transfers every single thing they own to the trust. I mean, I guess you could try, but if you’re like me, you have a lot of stuff. Doesn’t it just seem a lot simpler to transfer some of it and not all of it?

Even if you did somehow manage to get all that stuff of yours into a trust, there’s always a chance that you’ll get even more of it before you die, and that stuff isn’t going to be covered by your living trust because you didn’t have it included at the time you made the trust. Make sense?

A Will Can Do Things A Trust Cannot

To explain this in simpler, more cultural terms, think of a Living Trust like Robin and the Will is like Batman. Sure, Robin is great and whatnot. He can do a lot of cool things and he can hold his own, but Batman is on a completely another level. It’s the same thing with Wills and Living Trusts.

For example, if you have minor children, and you want someone to take care of them when either you or your spouse dies, you must use a will. You cannot use a living trust. Also, in a will, you can cancel any debts that you are owed, and that’s another thing that a living trust cannot do.

A Final Word From Justin Scott

Attorney Justin Scott sheds more light on the matter. “It can be nerve-wracking to try and think of if you’ve covered all your bases when planning for the future. It’s no question that something will inevitably get left out or you’ll forget this or that. And while you can most certainly create a will on your own, it can still be a bit confusing. If you’d like assistance with drawing up a will or living trust, or if you have questions about anything else, my team and I would be happy to assist you, and get you the help you need.”

If There’s No Will, Is There Still a Way?

We discussed what a will is and why it’s important to have one in another article (which you can find here). That’s all well and good, but what if you don’t have one? So, what now? Now, before you start panicking, let me put your mind at ease. If you don’t have a will, two things can happen, and we’ll look into those two things more closely now. The first of these is known as an Affidavit.


While the term may appear to be confusing, an affidavit is simply a written statement of facts. There are, however, various types. For example, if a person dies but is survived by a spouse and the property they owned is less than $20,000, an Affidavit of Surviving Spouse can be issued to dispose of the property without involving Administration.

If there are heirs but no spouse, an Affidavit of Heirs can be issued to the person who is the deceased’s closest kin. However, keep in mind that property owned by the deceased alone cannot exceed $10,000, and that consent from certain individuals may be required.

If everything goes well, the Surrogate can issue either an Affidavit of Spouse or an Affidavit of Heir, allowing the named individual to act on behalf of the deceased in relation to the property listed in the document. These documents are not available until the sixth day after the death.


If the value of the property owned exceeds $20,000 and there is a surviving spouse, that person may be appointed Administer of the estate, and a bond for the full value will be posted if there are other people entitled to inherit it.

If there is no surviving spouse and the estate exceeds $10,000, the next-in-line heir can be appointed as administrator, and the rest of the process is the same. Please keep in mind that renunciations may be required.

If you want to be considered for the position of administrator, the Surrogate Court requires a few things. A certified copy of the death certificate and qualification papers signed by the applicant are included (s). Letters of Administration and certificates will be issued once all requirements have been met, but not until the sixth day after death.

Contact New Jersey Estate Planning Attorney Today

No need to panic if you don’t have a will. While attorney Justin Scott agrees it can be (and usually is) beneficial, he also says:

“There are ways to work around it. These steps, while they can seem rather daunting, are in fact quite easy to understand, if you have knowledgeable people passionate about what they do. It’s our job to take care of the hard parts because waking up and living each day with the loss of a loved one is plenty hard enough.”

Contact us today at (856) 485-4585.